Authorson (Litigation guardian of) v. Canada (Attorney
PROCEEDING UNDER The Class Proceedings Act, 1992
Joseph Patrick Authorson, by his Litigation Guardian, Lenore
Majoros, plaintiff (respondent in appeal), and
The Attorney General of Canada, defendant (appellant in
 O.J. No. 2050
161 O.A.C. 1
32 C.P.C. (5th) 357
114 A.C.W.S. (3d) 2
Court File No. 739/01
Ontario Superior Court of Justice
Farley, Roy and Sanderson JJ.
Heard: January 10-11, 2002.
Judgment: May 17, 2002.
Courts -- Judges -- Disqualification -- Recusal motion, time for -- Bias, by trial judge -- Bias, arising from comments to counsel -- Bias, reasonable apprehension of bias.
Appeal by the Crown from the dismissal of its motion for the recusal of a case management judge in a class action on the basis of reasonable apprehension of bias. The motion was based mainly on alleged anti-government comments and lack of civility toward Crown counsel at a case conference. The Judge had reprimanded Crown counsel for redefining the class without his approval and without advance notice to opposing counsel. The motion was brought over two months after the case conference. The Crown explained that the delay in bringing the motion reflected the fact that its initiation was the result of much sober reflection.
HELD: Appeal dismissed. Absent unusual circumstances, a disqualification notice of motion was required to be brought within one month of the discovery of the alleged bias or the formation of the perception of the apprehension of bias. The Crown's reason for the delay in bringing the motion was not a cogent or satisfactory explanation. A delay of over two months was not appropriate and was sufficient to dismiss the appeal. The appeal would also have been dismissed on the merits, as the actions of Crown counsel that precipitated the reprimand were inexcusable. It was also apparent that Crown counsel misinterpreted what was said. The objective reasonable person having full knowledge of the facts and context of the situation would conclude that the Judge did not cross the line so as to result in a reasonable apprehension of bias.
Statutes, Regulations and Rules Cited:
Canada Evidence Act, s. 39, 39(1).
Class Proceedings Act.
R.G. Colautti, for the plaintiff Authorson, respondent.
S. Block, F. Cesario and Dale Yurka, for the defendant Attorney General of Canada, appellant.
[Quicklaw note: A corrigendum was released by the Court May 28, 2002. The correction has been made to the text and the corrigendum is appended to this document.]
The following judgment was delivered by
1 THE COURT:-- The Attorney General of Canada ("AG"), defendant (as representing Her Majesty the Queen in right of Canada (the "Crown") in this as yet uncertified class action proceeding (which was commenced in mid 1999) appeals the decision of Brockenshire J. ("Judge") given October 18, 2001 whereby the Judge dismissed a motion to recuse himself from further involvement in this case. As is the custom and obligation in such disqualification motions, the judge being asked to disqualify himself on the basis of reasonable apprehension of bias and prejudgment is the judge who hears the disqualification motion. Indeed in this case the Judge would have preferred not to have heard the disqualification motion. On November 5, 2001 Rogin J. granted leave to appeal the dismissal of the disqualification motion and, in doing so, he indicated that "the appearance of justice must be addressed". He went on to observe: "the maintenance of public confidence in the absolute impartiality in the judiciary must be fostered". (Benedict v. Ontario (2000), 51 O.R. (3d) 147 (C.A.)).
2 The plaintiff in his factum paragraph 2 states:
2. The respondent submits that the real reason for the recusal motion and this appeal is that the Crown wishes to have a fresh judge, unfamiliar with the myriad issues of facts, principles of law and procedural issues previously argued in these proceedings take over the supervision of this litigation. The Crown has not been successful to date in persuading the learned case management judge that its arguments should prevail over those advanced by the veterans. The Crown seeks a more receptive ear. It is submitted that the very nature of the Crown motion in this case constitutes an attempt by the Crown to interfere with the independence of the Judiciary, and should not be tolerated.
We impugn no such motive to the Crown in coming to our decision.
3 The AG specified the following grounds of appeal:
1. The case management judge erred in concluding that his actions had not demonstrated a reasonable apprehension of bias towards the defendant and its counsel;
2. In coming to this conclusion, the case management judge failed to deal with the specific and substantial evidence as to the serious implications of his anti-government comments and lack of civility towards defendant's counsel, including at a July 5th  case conference;
3. The case management judge erred in relying on irrelevant considerations, such as that case conferences are "informal, private administrative meetings" and that the defence counsel team had, in His Honour's opinion, deserved the treatment they received;
4. The case management judge demonstrated in his reasons on the motion that he has substantially prejudged the outcome of the motion relating to class definition (which was heard by His Honour on November 5th and 6th, 2001);
5. The case management judge erred in disregarding the evidence relating to his prejudgment of material issues, including the context of an expert's report proffered by the defendant as to damages;
6. The motions judge erred in finding that his activities did not demonstrate prejudgment on material issues and did not deny the defendant a fair and full hearing; and
7. Such further and other grounds as counsel may advise.
4 In all cases, justice must not only be done, but it must appear and be seen to be done. That principle must be reinforced in the very sensitive cases involving judge disqualification. We agree with Rogin J. that in cases where a litigant is dissatisfied with the result of a disqualification motion, it is desirable and of advantage to have "consideration by, and guidance from, a higher court". If the evidence shows that there is a reasonable apprehension of bias or of prejudgment, then a judge ought to be disqualified. However if it does not, then a judge ought not to be disqualified (nor shrink from his judicial obligations). It would be inappropriate for a party to bring a disqualification motion if the essential purpose of that step were to be a form of reverse "judge shopping" because of subjective dissatisfaction either with the judge drawn or with previous decisions or directions of that judge. On the basis of the record here, there is no material cogent evidence of such an improper motive on the part of the AG and Crown counsel.
5 The classic test for apprehension of bias is to be found in Committee for Justice and Liberty v. Canada (National Energy Board),  1 S.C.R. 369, which is summarized at p. 394 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.
... [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 decision maker], whether consciously or unconsciously, would not decide fairly?"
6 This test 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. Further, the reasonable person must be an informed person with knowledge of all the relevant circumstances, including the tradition of integrity and impartiality that form a part of the background of the judicial system, and also be aware of the fact that impartiality is one of the duties 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.
7 As Bastarache J. stated at paragraph 3 of Arsenault-Cameron v. Prince Edward Island,  3 S.C.R. 851:
... 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.
(Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12.)
8 As Lord Denning M.R. stated at p. 599 of Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others,  1 Q.B. 577 (C.A.):
... Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see Reg. v. Camborne Justices, Ex parte Pearce, and Reg. v. Nailsworth Licensing Justices, Ex parte Bird. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased."
9 The apprehension of bias test was reviewed in the Court of Appeal's synopsis in Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.) at pp. 130-1:
Before considering this ground of appeal, we will briefly review the principles that apply to a claim of judicial bias. These principles, now well established, have recently been summarized by the Supreme Court of Canada in R. v. S. (R.D.),  3 S.C.R. 484, 118 C.C.C. (3d) 353. They are as follows:
1. All adjudicative tribunals owe a duty of fairness to the parties who appear before them. The scope of the duty and the rigour with which the duty is applied vary with the nature of the tribunal. Courts, however, should be held to the highest standards of impartiality.
2. Impartiality reflects a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues.
3. "Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair." (at p. 524 S.C.R.)
4. The test for bias contains a twofold objective standard: the person considering the alleged bias must be reasonable and informed; and the apprehension of bias must itself be reasonable. In the words of de GrandprÈ J. in Committee for Justice and Liberty v. Canada (National Energy Board),  1 S.C.R. 369 at p. 394, 86 D.L.R. (3d) 716, approved of by the Supreme Court of Canada in S. (R.D.), supra:
[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. ... [The] test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. ..."
5. The party alleging bias has the onus of proving it on the balance of probabilities.
6. Prejudgment of the merits, prejudgment of credibility, excessive and one-sided interventions with counsel or in the examination of witnesses and the reasons themselves may show bias. The court must decide whether the relevant considerations taken together give rise to a reasonable apprehension of bias.
7. 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.
8. Nonetheless, if the judge's words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial and cannot be cured by the correctness of the subsequent decision. Therefore, on appeal, a finding of actual or apprehended bias will ordinarily result in a new trial.
The Court of Appeal went on at p. 139 to observe that: "A trial judge has the right, indeed the duty, to intervene to clarify and understand the evidence or to control the trial, provided that in intervening, the trial judge does not prejudge the issues in dispute or the credibility of the witnesses." Putting that in the context of a class proceeding being case managed, we would think that that judge has the duty to control the process provided that each party is able to bring motions and fairly present its case as to the various interim steps leading up to trial.
10 The question as to prejudgment is somewhat interrelated here. As the AG's factum at paragraph 55 submitted:
55. Comments made by judges expressing contempt and disbelief for the position of a party or appearing to adopt an adversarial position inimical to a party and its counsel - such as that the party has a "pretty desperate case" or is "wasting the court's time" [quotes from another case] - can raise a reasonable apprehension that the judge's mind was closed to a fair and impartial consideration of a party's case. This kind of conduct destroys the image of impartiality that should exist in a courtroom.
Sorger v. Bank of Nova Scotia (1998), 39 O.R. (3d) 1 (C.A.) at 5 and 8-9
Shoppers Mortgage and Loan Corporation v. Health First Wellington Square (1995), 23 O.R. (3d) 362 (C.A.) at 364, 368-9
Lennox v. Arbor Memorial Services Inc., 56 O.R. (3d) 795, Docket C34772, released November 29, 2001, Court of Appeal for Ontario, at paragraph 12.
As Dubin J.A. observed at p. 362 of J.M.W. Recycling Inc. v. Canada (A.G.) (1982), 35 O.R. (2d) 355 (C.A.):
The trial judge obviously thought that there was no merit in the case, but even if a trial judge forms the view early in the proceedings that a party's case is weak, it is fundamental that every litigant have a fair trial. However well-intentioned the trial judge may have been, his conduct in this case deprived the plaintiff of the fair trial to which it was entitled.
11 A judge can only legitimately make a decision in a case based upon the relevant submitted evidence and the law. A party is entitled to a fair opportunity to present its case in a focussed way. Counsel, as officers of the court, are expected in furthering the best interests of their clients to present their case on its merits, its true merits. See Ashmore v. Corp. of Lloyd's  2 All E.R. 486 (H.L.) where Lord Templeman at p. 493 observed:
The parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner. In nearly all cases the correct procedure works perfectly well. But there has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment or discrimination. In Banque FinanciËre de la CitÈ SA v. Westgate Insurance Co. Ltd.  2 All E.R. 947 at 959,  2 A.C. 249 at 280-281 I warned against proceedings in which all or some of the litigants indulge in over-elaboration causing difficulties to judges at all levels in the achievement of a just result. I also said that the appellate court should be reluctant to entertain complaints about a judge who controls the conduct of proceedings and limits the time and scope of evidence and argument. So too, where a judge, for reasons which are not plainly wrong, makes an interlocutory decision or makes a decision in the course of a trial the decision should be respected by the parties and if not respected should be upheld by an appellate court unless the judge was plainly wrong. ...
... The only legitimate expectation of any plaintiff is to receive justice. Justice can only be achieved by assisting the judge and accepting his rulings. ...
12 We also have to keep in mind that the incidents took place within the confines of a case management session. As part of case management these sessions are designed to keep complex cases on track and the litigation focussed so that justice - for the benefit of all sides - be accomplished in the most time and cost efficient manner. As McEachern C.J.B.C. noted in G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd.,  B.C.J. No. 2828, at paragraph 18 there will be:
... the great waste and inconvenience which will arise by reason of the knowledge and familiarity of the pre-trial management judge being wasted; ...
At paragraph 8, McEachern C.J.B.C. quoted Esson C.J. as follows:
... If the pre-trial management judge does not continue as management judge, the value of his unique knowledge of the case resulting from the investment of time and effort which he has put into it will be entirely lost. That will prejudice the parties. Furthermore, it will damage the system and thus prejudice the public interest. Much judicial time, a scarce commodity at present, will be squandered. ...
13 Does the waste of judicial time affect the test for disqualification of a case management judge? The AG's factum went on to submit at paragraph 57:
57. Comments made at a case conference can raise a reasonable apprehension of bias and can indicate prejudgment. In Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co., the Nova Scotia Court of Appeal granted an order recusing a trial judge from any further involvement in the dispute between the parties on the basis of comments made at a case conference. These comments indicated that the trial judge had prejudged an issue which had not yet been argued and on which evidence had not been presented. The Nova Scotia Court of Appeal held that:
It would not be reasonable to expect, despite the trial judge's integrity, that a fully informed reasonable person would perceive that the trial judge could impartially adjudicate an issue that he has already decided.
It is unfortunate that the trial judge made the comments he did as this litigation is complex and has now gone on for some seven years. The comments were likely made out of frustration with the progress of the litigation and in the hope of speeding the proceedings along. The trial judge had heard a great deal of evidence that would be relevant to interpreting the MOU. However, he had not heard all of the evidence on that issue. Nor was the issue before him.
Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co.,  N.S.J. No. 271 (C.A.) at paras. 70-71.
We agree with that observation in Mitsui but we are of the view that it would be appropriate to put it in context as Hallett J.A. had started off his reasons at paragraph 3 with the following statement:
3. In my opinion, the application for leave should be granted and an order made for the recusal of the trial judge as there is a reasonable apprehension of bias arising from comments he made in the fall of 2000. The trial judge made it clear at the September 27, 2000 case management meeting, in his Memorandum of that conference and confirmed in his recusal decision, that he had already decided that a memorandum of understanding (MOU) entered into between the parties on July 28, 1992 finalized all disputes that existed between the parties before that date. What the MOU meant, as is apparent from a review of the record of the proceedings, was not to be determined until evidence on that issue was adduced and submissions made by the parties at the second stage of the trial. Nevertheless, based on evidence presented at the severed trial, the trial judge subsequently made it clear to counsel that he had decided that the MOU had finalized all matters of dispute between the parties that had arisen prior to July 28, 1992.
Thus it was clear in that case that there had in fact been a prejudgment. Given the complexity of this case, the removal of the Judge would prejudice the plaintiff's right (and the defendant's right as well) to have this matter disposed in an efficient and timely manner. Much judicial time (in the sense of position on the learning curve as to the complexities of the subject case) would have been squandered, and certainly that is not in the public interest. However if the circumstances warrant disqualification because of either a reasonable apprehension of bias or prejudgment, then it does not matter that judicial time is wasted.
14 We are of the view that no matter where a judge makes prejudgment conclusions (whether they be characterized as comments or statements), whether the judge makes them in open court, in chambers, in a case management session or otherwise (outside the court milieu), then disqualification is appropriate and necessary. That is not to say that a judge cannot hold or express tentative views, provided that a reasonable fully informed objective person in the context of the circumstances prevailing would appreciate that the judge still had an open mind on the matter in issue. A judge may even be inclined towards a particular result part way through a hearing, but ask questions (or make enquiries about statements) to test the validity of a proposition or to explore whether there are some unforeseen problems or dangers which may become apparent if the boundaries of the topic are examined.
15 We must further consider the aspect of the cumulative effect of all of the alleged complaints. As the Court of Appeal observed in Sorger v. Bank of Nova Scotia (1998), 39 O.R. (3d) 1 (C.A.) at p. 3:
In the end, as this court indicated in Shoppers Mortgage & Loan Corp., supra, one must consider the cumulative effect of all the relevant factors. Taken together, would they lead a reasonable and informed observer to have a reasonable apprehension of bias on the part of the trial judge and to conclude that there had not been a fair and impartial trial.
It was further noted at p. 5 that:
... While the trial judge reversed himself the next day and rescinded this decision, the episode is a part of the ultimate apprehension created by the conduct of the entire trial.
16 The Court of Appeal in Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 23 O.R. (3d) 362 (C.A.) stated at p. 364:
It is unnecessary to enumerate and quote from the countless interventions by the trial judge, a ground of appeal which overlaps with the ground of appeal based on premature, anticipatory rulings on the admissibility of evidence indicating a prejudgment of the issues. Generally, the record is punctuated by statements of the trial judge to defence counsel such as:
You're wasting my time.
You are scraping the bottom of the barrel.
You're clutching at straws.
You're fighting an uphill battle.
You have got a pretty desperate case.
Rather than attempting to weigh each intervention separately, one has to consider their cumulative effect.
17 Given the context of these observations by the Court of Appeal in Sorger with a foundation in Shoppers and the examples given of the trial judge's statements to defence counsel in Shoppers, it seems to us that the cumulative effect is as to those statements made within a reasonably contemporaneous time of the complaint. Otherwise there would be the "lying in the weeds" problem which was a concern to the Supreme Court of Canada in R. v. Curragh (1997), 144 D.L.R. (4th) 614 (S.C.C.) and as discussed below. It would seem reasonable that the cumulative effect of the complaints be taken as those complaints which are comprised in the time period before a fresh step (or its equivalent) is taken (absent some limitation period or equivalent problem), but subject to the relaxation of that restriction if the complainant has not had any realistic opportunity to make an earlier complaint (e.g. because of court commitments, especially if the court attendances were on sequential days before the judge who is the subject of the complaint).
18 The Supreme Court of Canada set out its views in Curragh, supra, concerning the timeliness requirement for a motion for recusal. There does not appear to be a difference of opinion between the majority and the dissenters concerning the approach to this question; both sides accepted the proposition that motions for disqualification are to be brought promptly. At p. 620 La Forest and Cory JJ. for the majority stated:
11. Our colleagues contend that allegations of bias should be made in a timely fashion and cite American cases for this proposition. 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. However, in this case, the Crown took the courageous position of moving to have the trial judge recuse himself within 5 days of his demonstration of bias or at least the reasonable apprehension of bias. Thus it moved in a timely, appropriate and reasonable manner. The Crown certainly cannot be faulted on that score.
19 Their colleagues McLachlin and Major JJ. had observed at pp. 646-9:
106. ... The contrary view runs counter to the rule of law and the practical functioning of our judicial system. For example, if this view were to hold, parties perceiving bias could lie in the weeds and long after the trial judge rules against them, have the entire proceeding invalidated ab initio. A party who was not prejudiced by the bias could move to have the proceedings and verdict set aside on the ground of nullity. Persons affected by a court order would look to see whether there is some bias on which the Judge's jurisdiction could be impugned and decide accordingly whether to obey the order or not. Absent verification that the judge in fact was not biased, no one could know for certain whether a court order was worth the paper it is recorded on. Verdicts, including acquittals, and sentences long since imposed could be overturned on the discovery, perhaps years later, of conduct by the trial judge capable of supporting a reasonable apprehension of bias. Finally, if the jurisdiction of the trial judge for recusal since he or she would lack jurisdiction to hear it; the established procedure for remedying bias would be rendered invalid.
108. The same, in our opinion, is true of bias. A judge may make a comment or decision in the course of a trial which leads to a reasonable apprehension of bias. The party against whom the bias is directed may wish to overlook the comment and continue with the trial. He is entitled to do so without fear that, at a later date, the other party, dissatisfied with the verdict, will challenge it on the ground that the entire proceeding thereafter is a nullity. Nor, in fairness, should the party against whom the bias is directed be permitted to leave the bias unchallenged and continue with the trial, secure in the knowledge that he can apply to have the verdict nullified should it go against him.
113. Our research reveals no common law country which holds that apprehension of bias automatically nullifies a criminal trial. In the United States the problem has frequently fallen for consideration. Post-hearing disqualification for bias is controlled by the concept of "seasonality". A judge will not be disqualified by reason of bias unless the application for disqualification is made in a timely and seasonable fashion. Unless objection is taken promptly upon discovery of the alleged bias, the right to have or to have had an unbiased adjudicator is lost: United States v. Daley, 654 F. 2d 645 (2d Cir. 1977); certiorari denied 435 U.S. 933 (1979); Smith v. Danyo, 441 F. Supp. 171 (M.D. Penn. 1977); affirmed 585 F. 2d 83 (1978); In re Martin-Trigona, 573 F. Supp. 1237 (D. Conn. 1983); affirmed 770 F. 2d 157 (2d Cir. 1985). Thus, in the United States bias or apprehension of bias does not nullify the trial or the verdict that follows. If a party acts promptly, or "seasonably", it may succeed in having the judge disqualified for bias. Otherwise, the proceedings and their conclusion remain on foot and no complaint can be made.
114. We conclude that judicial conduct giving rise to a reasonable apprehension of bias does not automatically deprive the judge of jurisdiction and nullify criminal proceedings. The proper course for a party affected by the bias is to move promptly for recusal of the judge. Absent an order disqualifying the judge, the judge retains jurisdiction and the proceedings continue as before. On review, an appellate court may, depending on circumstances, overturn the judge's decision on the motion for recusal. However, until overturned by higher authority, the judge retains jurisdiction, and all orders he or she makes or has made are valid.
20 In the earlier case of R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) and 380 A.P.R. 50 (N.S.C.A.) the Nova Scotia Court of Appeal noted at p. 61 that:
4. A lawyer who wishes to object to a presiding judge on the ground of reasonable apprehension of bias is expected to make the recusal motion with reasonable promptness after ascertaining the grounds for filing the motion; otherwise there will be a waste of judicial time and resources and a heightened risk that litigants would use recusal motions for strategic purposes (Preston et al. v. U.S. (1991), 923 F. 2d 731 (U.S. Court of Appeals Ninth Circuit)).
In that case it was found that there had been a timely motion as the relationship between the judge and the Crown had been revealed on March 23, 1993, a month after conviction. The Crown appealed the penalty on April 13th and two days later there was a cross-appeal on bias. We are of the opinion that absent unusual circumstances a disqualification notice of motion should be brought within a month of the discovery of the alleged bias or the formation of the perception of the apprehension of bias. This allows ample time for counsel to have sober reflection, to seek outside advice, to bolster their courage and to prepare material. In the normal course of events we would think that it would be good practice to put the judge and the other side on notice at the earliest reasonable opportunity.
21 The Crown here took no action on any of its present complaints until over 2 1/2 months after the July 5, 2001 case conference. The complaints are not only as to the Judge's behaviour at that case conference, but stretch back over a two year period prior to the disqualification motion being made. No cogent explanation was given as to this delay (or a justification that in the particular fact circumstances that the delay was reasonable and necessary); all that was proffered was the assertion of one Crown counsel, William A. Knights ("Knights"), at paragraph 16 of his October 8, 2001 affidavit:
16. The timing of this motion reflects nothing more than the fact that its initiation was the result of much sober internal thought on the part of the Crown and is reflective of the level of profound concern as to the comments made by Justice Brockenshire.
which in our view is not a cogent or satisfactory explanation for the delay.
22 Further it would seem to us that the proper time to complain about the Judge's behaviour as to times leading up to the July 5th, 2001 case conference was within a reasonable period of time following each incident. We will however address later the question of whether these alleged incidents should be analyzed in the sense that they can be considered as resulting in a cumulative or aggregate nature as being a straw which breaks the camel's back.
23 We are of the view that a delay of over 2 1/2 months is not appropriate in these circumstances and we would dismiss the appeal on the basis of non-timeliness of the complaint. Even though we would dismiss the appeal for lack of timeliness of the complaint, we think it appropriate to deal with the substance of the allegations.
24 Given the requisite elements of the test concerning reasonable apprehension of bias or of prejudgment, it follows, therefore, that in a disqualification motion or appeal, the court must not have a knee jerk reaction to certain words or allegations made by one of the parties against the presiding judge. It must carefully review all the circumstances to assure that the test is truly by a reasonable and informed person. In this contextual analysis we have considered the nature of the case, the issues involved, the parties, the forum where the words and incidents are alleged to have taken place, and the conduct of the parties before and after the allegations of bias and prejudgment.
25 In doing so, we have carefully examined the record before us. In some cases of this nature, the record will be without difficulty for the task at hand. For instance, in a trial there will be a transcript certified by a qualified reporter which will be available to examine to see if the words spoken by the trial judge give rise to a reasonable apprehension of bias (as in Shoppers Mortgage at p. 364: "You're wasting my time"; "You have got a pretty desperate case" when viewed on a cumulative basis.) However, there are other cases where there is no such transcript (or recording) available. The subject case is one of those situations. What we do have is a record which has a number of material difficulties and deficiencies. We make that observation not to criticize anyone. Indeed this case is scarcely unique in that respect; virtually every matter which does not involve a transcript will have at least some of the difficulties and deficiencies we observe in this case and perhaps some others. Transcripts do not of course pick up the volume, tone and inflection of remarks made. Without claiming to be exhaustive here, it seems to us that the following difficulties and deficiencies are present in this record:
(a) The notetaker counsel for the Crown, Cynthia Koller ("Koller"), is not a "verbatim" reporter although we were advised that she had previous experience in taking down extensive notes in her previous career as a newspaper journalist. It is not possible to determine what she either omitted to record or misrecorded or misattributed although as discussed below, there do appear to be errors.
(b) She was not physically present at the two case conferences of January 10, 2001 and July 5, 2001 as to which she includes her handwritten notes in her affidavit. Rather she listened in on the case conferences by telephone. She asserts that she was able to hear everything and that counsel did not speak while the Judge spoke. She stated that on July 5th she had to turn the volume down on her phone because the Judge was shouting; however several times she had to ask people to speak up.
The quality and integrity of the speakerphone used at the case conferences has not been verified; this observation is made in a general sense since speakerphone conferences may experience difficulties with the phone only transmitting conversations one way when two people are speaking (although Koller appears to be the only person in Toronto for the July 5th conference; she and John Spencer ("Spencer"), lead Crown counsel, were in Toronto on January 10th), there are problems in being able to identify who is speaking, and speakers may have a tendency to raise their voices when speaking into a speakerphone, especially when one is unable to observe the reaction of the person on the other end of the line or when those speaking have been asked to speak up or when the speakerphone is only transmitting the other way.
(c) Koller swore two affidavits, one on September 27, 2001 and the other on October 8, 2001 relying in part on what she had been told by Spencer and in part on her notes and recollection. It is questionable why her first affidavit would have contained hearsay as to what Spencer told her had happened at a much earlier time when she stated at paragraph 26:
26. Throughout this proceeding Mr. Justice Brockenshire has made numerous comments denigrating civil servants. I was present for certain of these comments and others have been related to me. For example, I am advised by John Spencer, Senior Counsel at the Department of Justice and the counsel having carriage of this file, and do believe, that during the course of one of the early pre-certification attendances in front of Mr. Justice Brockenshire he 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.
In his October 8, 2001 affidavit Spencer stated directly at paragraph 7:
7. At the beginning of the motion on October 8, 1999, Justice Brockenshire took the position that the time had come to decide whether or not we had a class proceeding here to be certified. He noted that the Crown had raised certain bars to the action and said that the certification motion should not be delayed any longer. Justice Brockenshire allowed the plaintiff's motion to amend the claim largely on the basis that the expanded claim still concerned unpaid interest. I reminded the court of the difficulties my client would experience in trying to find the documents relating to this action and that it would be a mammoth undertaking. It was in response to this expression of concern that Justice Brockenshire told me to take a message to Ottawa. He said to tell my 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. He said my client should not spend a lot of time trying to dig up old papers but rather should direct its efforts toward repairing a wrong that had been done.
As to Koller's recollection, relying on the "shorthand" of her notes, it would appear that in at least certain instances a different interpretation would be appropriate. At paragraph 7 of her October 8th affidavit she states as to the January 10th case conference:
7. Justice Brockenshire, after retrieving his notes from the previous case conference, started the case conference by stating that he assumed the Crown had "the hustle going again" and asking the Crown, "What's going on?" John Spencer answered Justice Brockenshire's question by describing the process underway to prepare an expert's report, such as pulling the files of individual veterans. Mr. Spencer also provided time estimations at the start of the case conference.
Her notes appear to reflect:
Backroom. Gets notes from last time around. Chief Justice had said get on with establishing things. I assume get the hassle hustle going again. What's going on?
which may possibly be that, after McMurtry C.J.O. refused to grant a stay, the Judge interpreted that refusal as a direction from the Court of Appeal that the parties should "hustle" and get on with the case. At paragraph 9 of her October 8th affidavit Koller states:
9. At the January 10th case conference, plaintiffs' counsel demanded that the Crown divulge the approach to be taken by her accountants and to divulge to plaintiffs' counsel the Crown's critique of the report prepared by the plaintiffs' expert, Dr. Charette. Plaintiffs' counsel felt they had a right to this information in advance of the release of the Crown's expert report. As Mr. Colautti said: "[We] haven't seen [a] scintilla ... that [in] our approach we're wrong." Justice Brockenshire, after listening to an exchange between counsel for both sides, agreed. His Honour said, as reflected in my notes at Exhibit "B" of my previous affidavit, "[It's the] kind of case [that is] attracting a lot of public attention. Veterans and families - they want to know what is going on. Nothing has happened except that they met with [the] judge and everyone talked a lot. If there is a delay for several months, [we] need a public document, [with] the scope of work, the number of areas [that] need to be investigated [in] abbreviated form - then the world in general would know ... Plaintiffs and plaintiffs' counsel are entitled to having [this] information. Colautti['s] position is reasonable on [the] face [of] it. Why is it a secret - if you reveal what's wrong with [the] Pension Act?"
In her notes "P.A.", rather than "Pension Act", is set down. Given that the Charette report was based upon the Crown's Public Accounts, one would think "P.A." was a reference to Public Accounts as opposed to Pension Act.
(d) The AG relies upon certain alleged events stretching back as far as almost the very beginning of this lawsuit in 1999. Aside from Koller's notes of the January 10th and July 5th, 2001 case conferences, there were no notes of these events taken at the time or shortly thereafter, no internal memos to file and no reports which were put into the record before us, aside from the note to file of plaintiff's counsel David G. Greenaway ("Greenaway") concerning the January 10th meeting which reflects the Judge enunciating a position which is contrary to that alleged by the Crown. Indeed it is not until the Crown, over 2 1/2 months after the July 5th conference, makes its disqualification motion dated September 27, 2001 (with the Judge being notified of this just shortly before) that the Crown raises any concern about what it alleges the Judge has done over the past two years. Of course with the passage of time, memories may tend to fade, become confused or jumbled or otherwise tainted, even amongst persons trained in the law, especially if they are busy. That is not to say that people cannot remember very salient points, especially if they are of material importance; a corollary of that is that it is equally likely that one will know if one has not said or heard something of material significance.
(e) There appears to be some understanding between Crown counsel and plaintiff's counsel that (as to the order concerning class definition granted by the Judge on October 8, 1999 and the plaintiff and the Crown through their respective counsel agreed to the definition of the class) the class definition was subject to a condition expressed in a November 24, 1999 letter of Crown counsel Dale Yurka ("Yurka") who was substituting for Spencer who was medically incapacitated at that time, which letter was prepared by Crown counsel Vickie Lou McCaffrey ("McCaffrey"). This letter to plaintiff's counsel Greenaway and Raymond G. Colautti starts off:
... In relation to your draft order, we have been instructed to advise you of the following positions.
1. Class Definition stated in paragraph 2
Our client conditionally agrees with the class definition set out with the proviso that it reserves the right to seek an amendment to this portion of the Certification order once the legislative histories associated with various funds are complete and it is clear that a revision is warranted.
There does not appear to be any indication that the Judge was made aware of this conditional consent. We are troubled by the fact that it appears that neither plaintiff's counsel nor Crown counsel formally advised the Judge of this. We would have thought that counsel should jointly have notified the Judge. The end result of this is that the Judge proceeded over the next several years on the basis that class definition had been set, even though from time to time the Crown may have expressed its dissatisfaction or concern with the definition.
(f) No explanation was given for the length of time it took to initiate the disqualification motion except the previously noted assertion of Knights:
16. The timing of this motion reflects nothing more than the fact that its initiation was the result of much sober internal thought on the part of the Crown and is reflective of the level of profound concern as to the comments made by Justice Brockenshire.
Rather this appears to be in response to the statement in the October 1, 2001 affidavit of Peter Sengbusch ("Sengbusch"), a counsel for the plaintiff at paragraph 16:
16. It is clear to me that the government is attempting, as it has on numerous occasions in this proceeding, to slow down or grind to a halt, the plaintiff's case. It first notified plaintiff's counsel on September 25, 2001, that it was seeking to have Justice Brockenshire removed from this action. This notice came almost three months after the impugned July 5, 2001 case conference. It was given three working days before the important week-long appeal of the plaintiff's judgment, and seeks to adjourn three critical pending motions scheduled for October 15, 2001 and November 5, 2001. The defence has failed to respond with any material to any of these motions. For instance, the critical motion for summary judgment on Estates liability, consisting of four extensive volumes of materials, was filed by the plaintiff in June of this year, and will complete the assessment of aggregate damages phase of this Class proceeding. The two other motions, the first of which is to be heard on October 15, 2001, contests the government's unilateral attempt to redefine the Class and refers to documents filed by the defence before this court, the Divisional Court and the Court of Appeal, all of which confirm the plaintiff's position, that both living veterans, and the heirs of deceased veterans are included. The other motion, which we hope will proceed on November 5, 2001, requires the government to produce the calculations and information originally promised for the Hodson report, which is purposefully omitted as a result of its unilateral redefinition of the class membership.
(g) We think it a given that both the Crown and its counsel on the one side and the plaintiff and his counsel on the other side are engaged in high stakes litigation. It appears that counsel for the plaintiff are extremely anxious to get on with this litigation and perhaps even more than is usual with plaintiff's counsel in a "standard" case given not only the advanced age of the veterans in question who are still living, but also because counsel in this class proceeding no doubt are having to finance what is undoubtedly fairly expensive litigation. The Crown on the other hand is experiencing some difficulty in piecing together the legislative history which is said to affect this litigation, even though one would generally expect that, even if there were significant and complex changes in the statutes and regulations, that this task could be accomplished ordinarily in a matter of a few months. However the phrase "legislative history" may encompass matters strictly outside statutes and regulations by including such things as policy and task force reports. In that regard and in response to plaintiff counsel's requests for task force reports, the Crown initially responded that there were no task forces. However after some further checking the Crown located task force reports on trusts made in 1975-76, 1979, 1982-84, 1986 and 1988-89. Similarly the Crown is experiencing some difficulty in analyzing the thousands of files in issue. Apparently most of the records have been transferred to Prince Edward Island with an attendant change in personnel, all within a Department of Veteran Affairs ("DVA") which has been in any event significantly downsized, thereby possibly losing some "institutional memory". As well there seems to be some budgetary constraints upon the DVA and / or the Ministry of Justice in support services for this litigation. The Crown certainly wished all along to have more time to accomplish each stage. The litigation has been hard fought, indeed intensely fought. While it is obvious that there has been some degree of cooperation and that the case has not been reduced to a "No quarter asked, no quarter given" battle, counsel on both sides have been under stress. On the multiple appearances and hearings before the Judge, "losses" on either side appear not to have been philosophically borne. We think it a reasonable observation from the material that each side's counsel may have unintentionally thought the worst of the other. Certainly it seems that counsel have a strained relationship. This may well impact upon characterization of the general context and specific events and the imputation of interests.
(h) There was no cross-examination on any of the affidavits. On September 25, 2001 Crown counsel advised counsel for the plaintiff of its intention to bring the disqualification motion. A case conference was held with the Judge on September 27th to discuss procedure with the draft notice of motion providing that LeSage C.J. hear it. Crown counsel swore the following affidavits:
(i) Koller September 27 and October 8, 2001
(ii) Spencer October 8
(iii) Barney W. Brucker ("Brucker") October 8
(iv) Knights October 8
(v) McCaffrey October 10
Plaintiff's counsel swore the following affidavits:
(i) Sengbusch October 1
(ii) Greenaway October 9
The disqualification motion was brought before the Judge on October 10th and he released his reasons on October 18th. It would appear that the urgency as to the hearing being on October 10th was as a result of the previously referred to forthcoming motions and appeals which were scheduled to be dealt with within the next month.
(i) The Crown in this appeal criticized the fact that the Judge relied in part upon his recollection of what he had said and what he had not said. We are of the view that this subject has to be dealt with sensibly. If a transcript is available or if counsel on both sides are in agreement as to what was said by the judge then it would not appear to us that a judge should rely at all on his memory. However absent a transcript or agreement, then it may be appropriate for a judge to do so. The doctrine of necessity would come into play, especially if the alleged offensive words were said to have been spoken privately to only the moving counsel.
(j) The (Hodson) Ernst & Young ("E&Y") report attached to the Sengbusch affidavit is reproduced in the Appeal Book with page 2 missing. In checking out what was contained on that page, we had reference to the plaintiff's motion record dated August 8, 2001 contained in the Appeal Book and which contains that E&Y report. Peculiarly enough there appears to be a somewhat different format (a difference of four lines and some underlining in the first few pages) than that attached to the Sengbusch affidavit.
26 The foregoing ten examples ((a) to (j)) of the difficulties and deficiencies in the record before us of course do not prevent us from coming to a conclusion in this appeal. As discussed previously, problems of this nature may occur in other disqualification motions. However, they do illustrate why it is necessary to approach the question in issue cautiously.
27 The first factor is the nature of the case. The plaintiffs started this action in March 1999. The plaintiffs, by way of a class action representing thousands of veterans, both dead and alive, going back to the 1920s, alleged that the defendant failed to invest or pay interest on funds, which were maintained by the defendant for members of the class. The action involves thousands of plaintiffs and millions of dollars in damages. By any measure, this is high stakes litigation.
28 Case management of such an action requires firm and steady control by the case management judge so as to secure a just, expeditious, and the least expensive determination of the proceeding on its merits.
29 Both parties have extensive resources at their disposal. As expected, they have experienced and competent counsel. During the course of case management, which takes place over months and even years, the parties can expect a certain amount of give and take. This allows all those involved to exchange suggestions and ideas, freely and candidly.
30 The allegations of bias against the Judge in acting in his case management judge role stem from comments apparently made during some of the sessions. There is no transcript, and there is some dispute amongst the parties, as to exactly what and how certain statements were made. In such circumstances, a certain degree of deference has to be given to a judge.
31 What is clear is that the subject litigation was for high stakes, bitterly fought by counsel on both sides and that counsel on either side perceived themselves as being somewhat disadvantaged by the circumstances of the case (this manifesting itself in the desire of counsel for the plaintiff to proceed expeditiously to an ultimate decision anticipating that there would be a substantial award and in the frequent requests by Crown counsel for more time to assemble information thought useful in defence). Counsel for the plaintiff emphasized that their client was extremely elderly and they wished a resolution before he died; however it should be observed that the Class Proceedings Act, 1992 came into effect in 1992 but that this litigation was not commenced by the plaintiff until 1999. Crown counsel assert that (as per paragraph 24 of the AG factum) they:
24. ... had repeatedly raised concerns relating to the class definition and its practical application from the very start of the action, both in letters to opposing counsel and submissions in front of Justice Brockenshire. These concerns included: the need to take time to properly reconstruct legislative histories; the mechanics of the class definition in light of the relevant statutory and regulatory provisions; and the issue of whether the class definition includes the estates of deceased veterans.
Spencer Affidavit, paras. 23-24, A.B., Vol. I, Tab 10, p. 112
McCaffrey Affidavit, paras. 2-9, 19-22 & 26, A.B., Vol. I, Tab 13, pp. 159-168
It should be noted that while there appear to have been discussions among counsel for both sides concerning the class definition (as one would expect given the 1999 Yurka letter), the Judge was not apparently privy to them. Crown counsel asserted that they had repeatedly raised concerns about the adequacy of the class definition in submissions to the Judge. No particular specifics of these submissions were given in the affidavits; instead what appears to be relied on is what the Judge said in his third paragraph at pp. 1-2 and his concluding paragraph of his decision of October 26, 1999 as per McCaffrey's affidavit at paragraph 8:
8. The motions judge stated in his oral reasons for decision that the question of the class definition was deferred for formal consideration at a later time. As the motions judge observed in the third paragraph of his reasons, "what was not dealt with before [him] at all at [that] time was the definition of the class, which includes the size of the class, who is included in it and who isn't, and the possibilities that in fact there should be sub-classes". In his concluding paragraph, the motions judge remarked that the parties would "have to proceed on further before the actual certification could be completed because ... there are issues that have not yet been addressed." The motions judge encouraged counsel to meet and discuss the remaining issues which had to be resolved prior to the issuance of a certification order. Attached as Exhibit "B" hereto is a copy of the transcription of the ruling of the Honourable Mr. Justice J.H. Brockenshire that was taken by court reporter Sherry L.R. Garron on Tuesday, October 26, 1999.
32 What the Judge said in these two paragraphs in total as well as one paragraph at pp. 20-21 was:
What was brought before me were some of the issues which have to be dealt with on an application to certify a class action under s. 5(1) of the Class Proceedings Act. Specifically, what was not dealt with before me at all at this time was the definition of the class, which includes the size of the class, who is included in it and who isn't, and the possibilities that in fact there should be sub-classes. Further, what was not dealt with before at all was any plan for the proceedings. There was no mention whatever of a litigation plan and if this matter goes ahead further in connection with the Act that is something that will have to be dealt with.
The secondary argument which was much briefer, is whether or not common issues are raised. The common issues alleged, have been enumerated by me at the beginning of this decision. The Crown argument is that there will be a myriad of individual issues; that each one of these persons would have an individual account; that there would have to be some discovery into what the relationship was between that person and the various persons in the D.V.A. and so on.
That may be true. However, the Act makes quite clear that the fact there are individual issues does not interfere with or prevent the proceeding with the common issues under a class proceeding. The Act specifically, and I understand after some debate and after input, decided against the predomination provision found in the United States and the British Columbia statute. Neither the number of other issues or the difficulties in dealing with them are going to of themselves prevent the common issues proceeding on towards a determination if otherwise it appears suitable. There are provisions under the Act for splitting off and having separate hearings, for creating sub-classes as may be needed, and basically of handling individual issues. I find that there have been common issues raised and that the statute is thereby satisfied.
We will have to proceed on further before the actual certification could be completed because, as I said at the start, there are issues that have not yet even been addressed. However, I think that these reasons gives the answer to the issues that I had before me, unless counsel can indicate there is something that I have missed.
33 It would seem to us that these later quotes put the Judge's view of matters and how things should proceed in context. Of course, it was true as asserted in this appeal that Crown counsel had expressed concerns about the class definition and adequacy thereof; however that was before the class definition order of October 26, 1999 as to which the Crown appeared to sign on. Thus while Crown counsel's concerns were not new, they had been rendered obsolete or redundant by that order. It is of course after the Judge gave his reasons that Crown counsel (Yurka) gave the Crown's (conditional) approval to the class definition order; but the Judge was not made aware of the conditional nature of the consent. It is puzzling that notwithstanding the effluxion of over one and a half years Crown counsel brought no motion before the Judge to amend the class definitions. Crown counsel apparently had some difficulty in obtaining sufficient budget from their client to do the type of research and analysis which they said was necessary. The Judge had a sympathetic appreciation for that problem. However what we have in the subject litigation is not a party with limited financial resources which it must husband and protect from inappropriate tactical initiatives by the other side designed to obtain victory by engaging in deep pockets litigation. The Government of Canada is, by definition of its taxing power, the most deep pocketed litigant in Canada. Indeed it would seem fair to observe that of the two sides here, for all practical purposes, the plaintiff (albeit no doubt heavily supported by his counsel) is the party which has the greater financial constraints.
34 It is apparent that the Judge was informed by Crown counsel that E&Y was being proposed for a retainer to provide a report which would challenge the validity of the (plaintiff's) report of Michael Charette (as per his affidavit of November 21, 2000) based upon the Public Accounts figures. Koller in her first affidavit refers to the January 10th case conference where:
27. ... The issue under discussion at that time related to the time required by the Crown to retain Ernst & Young in order to respond to the Charette report included in the plaintiff's summary damage motion. During the course of that discussion Mr. Justice Brockenshire became highly agitated and in perceiving that the Crown was seeking more time than was necessary and characterised the behaviour of the Crown as: "one dinky little bureaucrat dicks around with another bureaucrat". This statement was made in response to John Spencer's advice that he was not at liberty to disclose whether the E&Y retainer agreement was yet in front of either the Treasury Board or the Cabinet for approval. Attached and marked as Exhibit "B" is a copy of my handwritten notes of this conference.
Koller's notes appear to reflect the following:
Log jam. Work scheme [word indecipherable] its work scheme Application to crt - to set a date for return -> argument to support it - except for verbiage - [word indecipherable] clients'.
Dinky little bureaucrats dicks around with another bureaucrat ...
Collected - contract signed last week - no difference
There does not appear to be any reference to John's [Spencer's] response to the Judge's question. It should be noted that s. 39 of the Canada Evidence Act to which we were referred in support of Spencer's advice that he was not at liberty to advise whether the E&Y retainer agreement was in front of the Cabinet or Treasury Board for approval provides that the information is not to be disclosed "where a minister of the Crown or the Clerk of the privy Council object to the disclosure of information before a court ... by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada". We were not informed that there was any such written objection.
35 If Spencer did make the response submission Koller attributes to him (and he indicates in his affidavit at paragraph 20: "Her recollection of the events as described in her affidavit accords with my own") then it is obvious that Koller's notes are in this respect at least deficient since they do not reflect his response. It is also interesting that the Judge asks a question when he says "... John?" and then there is a new "paragraph" of "Dinky little bureaucrats dicks around with another bureaucrat ..." which is separated from the "paragraph" ending with the question: "... John?" by the same spacing as Koller generally gives to a new speaker, but she attributes this latter "paragraph" to the "Judge" as opposed to anyone else in the conference. Sengbusch at paragraph 27 of his affidavit states that he has no recollection of that alleged comment made by the Judge.
36 Further it is clear that in such a conference strong vernacular language may have been used from time to time by the participants. Four pages earlier in Koller's notes, she has recorded:
... Why is it a secret - if you reveal what's wrong with P.A.
Gov't will not play shifty games. We're not a small businessman outwit the crt - crazy
While it is possible that the note actually records "shitty" as opposed to "shifty", we think it more likely "shifty". In either event it would appear to us that Spencer as recorded by Koller is inappropriately responding to the Judge's question with an intemperate gratuitous slam against small businessmen as a class. We are of the view that this type of unfortunate language illustrates that while emotions may have been controlled for the most part in the case conferences, they were building up internally and steam from time to time escaped from the pressure cooker with strong inappropriate language.
37 In reviewing the incidents, which are alleged to have taken place on July 5, 2001, this Court must follow the criteria already referred to in R. v. S. (R.D.), supra, "... that is a reasonable and informed person with knowledge of all the relevant circumstances". From the outset, the Judge felt it important that the parties be ad idem as to who were the members of the class. In late 1999, there appeared to be some agreement on the part of all counsel that there be two parts to this action; one dealing with interest, and the other one dealing with principal.
38 The first class were physically and mentally handicapped veterans, whose pension allowances were administered by the DVA, and did not receive any interest on the money held by the government. In this class, there were many thousands of veterans most of whom were deceased. The administration of some of these funds dates back to the First World War.
39 The second class involved the estates and the benefits of the deceased veterans, who were again being administered by the DVA, which apparently, the government seized under government authority. In other words, one class dealt basically with interest, and the second class dealt with principal. This was the understanding of all parties, including the Judge, going back to late 1999.
40 On October 11, 2000, the Judge granted summary judgment to the plaintiff on the issue of liability in the part of the action dealing with interest acknowledging the property interest of the class members in their pensions administered by the DVA and that the Crown was a fiduciary to the class members. He discussed the Crown's motion to dismiss the action. The summary judgment was appealed by the AG [appeal now dismissed by the Court of Appeal on March 13, 2002]. The Judge concluded his reasons at paragraph 111:
111. I would expect that this decision will be carefully reviewed by the government, and may well be the subject of appellate review. If it is not overturned by an Appellate Court, or rendered of no force and effect by special federal legislation specifically passed notwithstanding the Bill of Rights, the questions of damage claims, and further steps in the action will have to be addressed in a case conference. I would now indicate, before hearing any representations or evidence, that perhaps the words "left invested for an unreasonable length of time" in the preceding quote from Halsbury should be kept in mind in evaluating individual claims, and so should the broad powers of the court under the Class Proceedings Act, ss. 24, 25 and 26, to among other things make aggregate, average or proportional assessments and direct payment for the general benefit of class members. As counsel well know, I will make myself available at any time, where ever I may be.
The parties then focused on the issue of range of damages, further to the summary judgment on interest. The plaintiff had filed an affidavit of an expert witness, Charette, who estimated the range of damages to be somewhere between $356 million and $3.3 billion.
41 As early as January 2001, counsel for the AG requested adjournments to allow them to prepare an expert report to respond to the plaintiff's expert evidence. That matter was adjourned to a case conference on March 12, 2001, where the Crown counsel argued that he should be allowed further time to bring forward evidence of damages. In support of this position, he filed an affidavit from Hodson of E&Y.
42 In that March 7, 2001 affidavit of Hodson of E&Y filed in support of a time extension requested by the Crown, he stated at paragraph 17:
17. In my opinion, approaching the assessment in the manner set out above will provide the court with a realistic assessment of damages. Furthermore, it will facilitate the eventual payout of entitlements as part of the assessment process entails the creation of a model to calculate individual entitlements where detailed information about the claimant is not available. Even though this approach may take longer than the simplistic approach taken by Charette, it will result in a more accurate assessment of damages and at the same time, set up the mechanism that will allow payouts to be made shortly thereafter.
and in his concluding paragraph 30:
30. I anticipate that by June 30, 2001 I will be able to complete a report that will include a detailed synopsis of our methodology, research and supported assumptions. In addition, I will be able to provide the court with the aggregate amount of administered funds annually since 1920, the aggregate entitlement based on reasonable yield and tax assumptions, individual entitlements for the surviving veterans and entitlements for the approximate 4,600 veterans who were under administration in 1986 and whose administration would, in some cases, have commenced more than forty years earlier.
43 In granting the extension requested by the Crown the Judge gave oral reasons which as taken by McCaffrey reflect:
E&Y has outlined an approach to be taken which, on my reading, does not include going back and re-auditing and re-establishing individual accounts. It includes some sampling from previous days which from my experience is what one would expect from an accounting firm. Some one would go to warehouse and look at a few boxes. Indicate that now have material on which to do samples. Photos show bankers boxes of materials in Charlottetown.
E&Y indicated that computer type of processing is anticipated to be down at end of this week. Set out to identify various subclasses of veterans and carry out testing of reliability of classification and as to what would be in it. It would seem to me that doing that type of sub-classification while not a proving of veterans accounts item by item, might well be helpful in providing parities with a touch stone for settlement and examination of accounts necessary.
The end result of the effort should be the production of number by the government experts that the government had been inclined to accept as factual - that in itself might be helpful in the long range. The work proposed by E&Y will be of assistance in the second phase if necessary. While the government is speaking of time, I do not see ... what is done at this stage might in the short term assist what is required at later stage.
... by June 30, E&Y will provide a report of detailed aggregate amount administered since 1920 plus yields on those amount based on a number of assumptions. I think these materials will be very helpful to the Court and the parties. I am prepared to extend the time until this is done. The approach taken by plaintiffs' counsel is to simply rely on the Auditor General's figures applied to various assumptions. If E&Y puts out their report, then plaintiffs' counsel may want to examine it and Hodson and have their own experts re-examine their position. Until those reporting materials are available - we simply don't know. Once the government makes its materials available, then plaintiffs' counsel can (respond) ... once the report is available.
Therefore, the first stage will be the delivery of the June 30th report. Some consideration will be given after then as to amount of affidavit evidence needed to be put together. (emphasis added)
44 Clearly, the Judge and counsel for the plaintiff understood that the class covered in the summary judgment motion included all veterans, alive or dead, whose pension entitlement had been determined from 1918 to present, and new funds had been administered by the Federal government.
45 The next scheduled case conference was July 5th and the items on the agenda were as follows:
1. The delivery of the E&Y report on quantification of damages.
2. The scheduling of summary judgment motion to quantify damages re interest.
3. The scheduling of the summary judgment motion on the estate liability issue (principal).
46 The Judge asked counsel for the defendant whether they had filed their report and if it contained all the information they had earlier promised. Crown counsel Knights responded that it did, and at that point, apparently, he was interrupted by counsel for the plaintiff who said the report did not contain what had been promised. The report contained only information in respect of such persons who were still living. It did not provide all of the information needed to assist in the calculation of damages for all veterans who had money administered by the Federal government since 1918.
47 The implication of this approach by Crown counsel was immediately obvious to the Judge. Here, one of the parties had sought an adjournment for over four months to bring forward certain specified expert evidence, which they did not do. Further, they had, on their own, without consulting counsel for the plaintiffs or the Judge, effectively changed the members of the class. In the view of the Judge, Crown counsel for the defendant did not give a satisfactory explanation for their conduct.
48 The Judge then proceeded to bluntly and forcefully reprimand the defence team. It may be that he used language which with the benefit of hindsight and calmer waters should not have been used, or that we would not have used.
49 There appears to be some disagreement as to the interpretation which should be given in the context of the circumstances to the words which are alleged to have been spoken by the Judge. However what appears reasonably clear is that what was seen by the Judge and counsel for the plaintiffs as having been advertised, indeed promised, was not delivered. Instead of a "full" report in response to the numbers in the plaintiff's Charette report, Hodson in the preparation of the E&Y report sought the advice of Crown counsel as to the interpretation of class definition. Crown counsel apparently instructed Hodson that E&Y should treat the October 26, 1999 class definition as referring only to veterans who were still alive. The E&Y report at paragraph 5.4 states:
Critical to our estimate of the Crown's obligation is the legal issue of whether or not there is any liability for interest in respect of administered accounts of former veterans, as there appears to be no provision in the Class Definition for the representative of estates or descendants of former veterans to be members of the Class.
It went on to state at paragraph 6.4: "... It is our presumption that the status of person' ceases on death".
50 It would appear reasonably likely that the Crown would not have got its requested adjournment if Crown counsel had advised the Judge that, notwithstanding what the October 26, 1999 order had stated as to class definition, the Crown wished to present material which was based on a class definition radically different from that encompassed by the order. This was not on sub-classes within that class definition, but rather on essentially a redefinition of the class (without the benefit of a motion to do so) by Crown counsel - and which although reserved on by Crown counsel in accordance with the conditional consent contained in the 1999 Yurka letter had not been furthered by the Crown for well over a year. Truly it was not compatible with the Judge's reasons in granting the Crown its extension. Plaintiff's counsel had reviewed the E&Y report. In their view it was deficient from what was advertised in Hodson's March 7, 2001 affidavit in that there is no reference to:
(a) the aggregate of administered funds annually since 1920;
(b) individual entitlement for the surviving veterans;
(c) entitlements for the approximate 4,600 veterans who were under administration in 1986.
It appears that the E&Y report at that stage only dealt with some two or three hundred veterans not 4,600 - notwithstanding that a team of accountants had been working full-time for over four months (this would be less than three or four files per working day for the entire team).
51 While the E&Y report indicates at section 4:
The work we have completed allows the development of a preliminary estimate of the Crown's obligation to the Class Members. The only candidate groups that we can conclude, with reasonable assurance, should be included as Class Members are, surviving veterans who are or were under the Crown's administration and surviving dependants who are also under the Crown's administration.
Our estimate of the Crown's obligation is approximately $46,288,427.00.
At the time of writing this report we have recently received and are still receiving additional documents relating to accounts under administration that we have not yet had opportunity to review. This review is ongoing and, depending on the volume of documents still to be received we expect to complete our review in the next four to eight weeks. Given the absence of certain key people in our team in July we believe it would be imprudent to create an expectation that we will have completed the review of additional materials and related refinements to our estimate before the end of August.
We recognize the urgency of the matter and we believe it is appropriate to provide our preliminary estimate and, perhaps more importantly, the basis for it at this time.
It would not appear that Hodson contemplated that the deficiencies would be corrected in the "next four to eight weeks" that were estimated for the completion of the review, given the conclusion as to the candidate groups as set out therein. In any event this supplementary report had not surfaced by the date of hearing this appeal.
52 In its factum the Crown asserted that statements and actions of the Judge had raised a reasonable apprehension of bias and demonstrated prejudgment of material issues. The paragraphs of the Crown factum in question are set out below with our view following each paragraph (which view is subject to the concerns expressed above as to the adequacy of the record before us).
53 Crown Factum, Paragraph 22:
22. At the outset of the case conference, notwithstanding that he later accepted that a case conference was not the place to consider or hear submissions on the content of an expert's report, Justice Brockenshire allowed plaintiff's counsel to make inflammatory comments attacking the E&Y report. They indicated that in their opinion the report ought not to have restricted the definition of class members to include only living veterans with the corresponding limitation of the calculation of damages to those veterans. Plaintiff's counsel took the position that the defendant's counsel had not done what they said they were going to do because the E&Y report failed to deliver as complete a report as had previously been indicated in the Hodson affidavit.
Reasons of Brockenshire J., para. 45, A.B., Vol. I, Tab 3, p. 29
Koller Affidavit, para. 18, A.B., Vol. I, Tab 8, p. 48
Analysis on Appeal:
22. We do not see that in the circumstances the Judge did other than appropriately ask the Crown if they had done what they said they were going to do and Knights responded that they had provided a report which set the claim at $46 million (as opposed to Koller's affidavit at paragraph 18 indicating "At the outset of the case conference plaintiff's counsel expressed their views as to the restrictive nature of the E&Y report"). The Judge naturally observed that the gap between the plaintiff's Charette report of some possibly billions of dollars and the E&Y report was significant. Sengbusch then referred to Hodson's affidavit indicating that the report was deficient in the ways set out above. Greenaway showed the Hodson affidavit to Brockenshire. The comments of plaintiff's counsel as noted by Koller do not appear to be inflammatory; the only note that comes anywhere a distant close to that is of Greenaway: "Surviving vets -> outrageous".
54 Crown Factum, Paragraph 25:
25. It was very clear that Mr. Justice Brockenshire was exceptionally unhappy with this restriction. In his Reasons denying the recusal motion, notwithstanding that the issue had been raised previously by appellant's counsel, Justice Brockenshire describes the appellant's position as being "provoking and shocking" to him, and admits that he was "obviously upset" by it and "perhaps even mad at defence counsel".
Reasons of Brockenshire J., paras. 30, 48 & 49, A.B., Tab 3, pp. 21-22, 30-31
Analysis on Appeal:
25. At paragraphs 30, 48 and 49 of his reasons the Judge stated:
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.
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 time 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.
It is of course the counsel of perfection that judges ought not to let anything surprise them and that they should act calmly and dispassionately, no matter what happens and no matter how aggravating the activities and behaviour of others. Notwithstanding that we are of the view that the Judge here exhibited an understandably human response to what he perceived (with justification in our opinion) was a radical and unannounced departure from the way that the litigation had been progressing with a long set in place definition of the class. Notwithstanding some deeply buried references in past material to what the Crown saw as a problem with the class definition (Exhibit "X" of the July 27, 1999 affidavit of Joan Albert referring to a 1974 Staff Instruction to the Canadian Pension Commission Staff: "2. There is a clear cut distinction between the two types of funds in so far as their administration by the Pension Commission is concerned. Administered funds do not form part of the pensioner's estate upon his or her death; they revert to the General Account or Consolidated Revenue Fund. On the other hand, trust moneys do not lapse.") and the Crown's conditional consent to the definition that is contained in the 1999 Yurka letter (to which the Judge was not privy), the Crown expert (acting under the instructions of Crown counsel) came in with a redefinition of the class, with the result that the plaintiff's counsel and the Judge were caught absolutely off guard. It should be noted that the Albert affidavit predated the October 26, 1999 class definition order. The E&Y report was not as advertised, but it was the deciding factor in gaining a four month extension when it is clear that if Crown counsel had explained with candour the restrictions it was imposing on its expert that extension would likely not have been granted. Under these circumstances we would think the reasonable and fully informed person would understand the human reaction of the Judge and further would not fault the Judge for so reacting as described by the Judge. Rather that observer would expect the Judge to appropriately reprimand Crown counsel absent a reasonable explanation from Crown counsel. See below as to paragraph 26 of the factum as to Crown counsel explanation.
55 Crown Factum, Paragraph 26:
26. He began to shout loudly at Knights saying, "Let's go back to what the action is about. Do you mean to tell me, as the government, you don't know. Most of them have died but the heirs have a claim". Knights responded that all of the deceased veterans fall into the estates claim and that claim has yet to be dealt with.
Koller Affidavit, para. 19, A.B., Vol. I, Tab 8, p. 48
Analysis on Appeal:
26. Knights explanation as noted by Koller does not appear to directly address the redefinition and fairly radical change in the previous direction of the litigation as case managed by the Judge. He appears to have mentioned that there was to be an ancillary report and/or a supplementary report, that the expert team had been working diligently for six months and personal funds of veterans should be excluded. After having said that, Knights was questioned by the Judge as to "living vets", to which Knights responded: "take the position that class is of surviving veterans -> that class is entitled $46 million". It was to that lack of explanation that the Judge made his observation as reported at paragraph 26 of the Crown factum. Again it would seem to us that the objective observer would not be surprised at the human reaction of the Judge in loudly and vigorously questioning Crown counsel who was not being responsive. We note the invariable human tendency to become progressively louder if one does not think the other person has truly understood the question. Koller's notes do not attribute to Knights what his response was but there is the reference to "All of them fall into the estates claim balance - yet to be dealt with". This response by Knights to the question of the claim of the heirs is again contrary to the established direction of the litigation. Again we would observe that this response would appear to an objective observer as being non-responsive.
56 Crown Factum, Paragraph 27:
27. Mr. Justice Brockenshire, in dealing with the issue of class definition, continued in the same furious and loud tone of voice saying, "This is the typical stupidity [that] arises in a government action ... Where the hell is the interest? There are two types of claims - surviving veterans and deceased veterans." He then took issue with the E&Y report, shouting, "That was not the way the pleadings were pled. That was not what the intention was and John Spencer knows this damn well." Spencer is lead counsel for the defendant.
Koller Affidavit, para. 20, A.B., Vol. I, Tab 8, p. 49
Analysis on Appeal:
27. The Judge's reaction to the non-response appears to be to get back to the basic foundation of the class proceeding as pled (and the class definition as set out in the October 26, 1999 order). His view as to the E&Y report not being in accordance with the way pleadings were pled was in furtherance of that approach. The intention as understood (by the Judge and plaintiff's counsel) on March 12 was not carried out.
57 Crown Factum, Paragraph 28:
28. Following a reference, by Peter Sengbusch, to an earlier affidavit of Bunty Albert, a senior VAC employee, Mr. Justice Brockenshire continued shouting, "This is a civil servant approach - equity is mysterious. A person is one who is alive, or at one time alive. The government has spent six months running down an alley. How can you justify spending what must be more than a million [dollars] on this trash you throw in the corner" [referring to the E&Y report].
Koller Affidavit, para. 21, A.B., Vol. I, Tab 8, p.
Analysis on Appeal:
28. It appears to us that the Judge's comments as noted by Koller are a continuation of his justifiable concern that the government has unilaterally decided to go off in an "unintended" and unannounced direction which was contrary to the established path and direction of the litigation. The government has expended six months doing that with the E&Y report (thereby gaining a four month extension based upon what the Judge and plaintiff's counsel understood would be in accord with that established path and direction). The Judge observed that the E&Y report was undoubtedly very expensive. His reference to "this trash you throw in the corner" is logically and reasonably understandable in this context. The reference is not that the quality of the work or the work piece is trash but rather that because of the restriction placed by Crown counsel in accordance with its view of what the (re)definition of the class should be, the work piece is valueless as not being responsive to what was promised, which promised work would have been of assistance as described by the Judge in his oral reasons of March 12, 2001 and in accordance with the established path and direction of the litigation. In that respect we do not see this comment as being a prejudgment of either the quality of the work or the quality of the work piece if the class were redefined. The reference to "This is a civil servant approach - equity is mysterious" appears in fact to be a reference to earlier material of a Crown report in which a bureaucrat (civil servant) described "equity" as "mysterious".
58 Crown Factum, Paragraph 29:
29. After Knights responded that the report sets out the amounts that are owing and that the estates claim will deal with the balances of the deceased veterans, Mr. Justice Brockenshire continued in the same tenor: "You stole the principal, never gave interest. It's simple to understand. It was pled that way." Knights attempted to respond and Mr. Justice Brockenshire then continued: "It's incorrect. Dead wrong."
Koller Affidavit, para. 22, A.B., Vol. I, Tab 8, p.
Analysis on Appeal:
29. The objective observer in our view would see that the Judge was merely paraphrasing in simple vernacular terms what the plaintiff had pleaded. We think it to be unreasonable to view his remarks with the slant that he had already made up his mind. It should also be kept in mind that some of the government documents themselves questioned not only the appropriateness of the government activities, but also the legality of those activities.
We note the observation of the Court of Appeal in Baker v. Hutchinson et al. (1976), 13 O.R. (2d) 591 (C.A.) at p. 598:
I have regretfully concluded that in a manner quite uncharacteristic of the experienced and able trial Judge, he transgressed the proper limits of judicial intervention in the trial of this action. I am confident that the trial Judge acted out of the highest motives and was throughout endeavouring to do justice to the parties. The result arrived at by him may, in the end result, be perfectly correct. However, when a litigant, on reasonable grounds, can fairly conclude that the opportunity of putting the full case before the Court was denied, there has been, in my opinion, a substantial wrong done, and it is the duty of an appellate Court to remedy it.
However as is reasonably apparent from the record here the Judge was asking on what basis did the Crown have for coming in with such an unexpected and limited report from that which the Judge anticipated in granting the extension on March 12, 2001. It appears to us that the Judge was willing to give Crown counsel a full opportunity to explain that but that what Crown counsel was responding with on a repeated basis was not an explanation but rather a different view of what the Crown thought the class definition ought to have been. Thus what the Judge was getting was not an explanation, but rather a unilateral conclusion by the Crown.
59 Crown Factum, Paragraph 30:
30. Knights stated that a report had been delivered. Mr. Justice Brockenshire shouted that the report (which His Honour had not yet read) was not complete and went on to shout: "Baloney. This report deals with what is owing to living vets. It has nothing to do with the issue ... Maybe you can argue that in front of the Court of Appeal."
Koller Affidavit, para. 23, A.B., Vol. I, Tab 8, p.
Analysis on Appeal:
30. Koller's notes would appear to have the Judge referring to completion of the report before Knights refers to the delivery of the report. In any event the Judge's vernacular reference to "Baloney" appears reasonably addressed to the issue that the report does not deal with the class as then presently defined and the established path and direction of the litigation. It is within that context that the Judge observes that the Crown could always assert, in the usual course of events, if the matter went to the Court of Appeal, that the Crown's view of definition of the class should prevail.
We think it obvious that the Judge was blindsided by the Crown's redefinition. Indeed as the Judge said at paragraph 23 of his reasons on the disqualification motion:
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 of all 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.
We note that the Judge acknowledged at paragraph 25 of his reasons that he could have been more restrained than he was:
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. ...
notwithstanding that Sengbusch stated in his affidavit at paragraph 20: "... at no time did [the Judge] act inappropriately, nor did he yell or shout."
However we do not see that this acknowledgment takes the Judge beyond the boundary of what the objective observer would see as permissible, especially when the Judge was both trying to understand how the Crown could have come in with such an unresponsive report and in turn was not responsive to the Judge's questions but rather was merely stating a conclusion by the Crown that it did not think the class definition should include the heirs of deceased veterans. Again it should be kept in mind that the Crown ought to have appreciated that it would take a formal adjustment to the class definition to get it to where the Crown was asserting it should be, as witness the conditional agreement contained in the 1999 Yurka letter. Indeed the July 5th case conference ended with the direction of the Judge for counsel to exchange views and attempt to come to some understanding (given the diverse views of counsel for the plaintiff and for the Crown) on what the various positions were concerning the interpretation and the meaning of the class definition. A further motion was then set down to hear argument on the "proper" definition as to whether "persons" included persons who had at some time had their funds administered by the DVA but who died before judgment. It would appear that this was not treated as res judicata given the Crown's conditional acceptance of the class definition pursuant to the 1999 Yurka letter.
60 Crown Factum, Paragraph 35:
35. Throughout this proceeding Mr. Justice Brockenshire has made numerous comments disparaging civil servants. During the course of one of the early pre-certification attendances in front of Mr. Justice Brockenshire, he 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.
Koller Affidavit, para. 26, A.B., Vol. I, Tab 8, p. 50
Spencer Affidavit, para. 7, A.B., Vol. I, Tab 10, p. 108
Analysis on Appeal:
35. We note that Sengbusch at paragraph 14 of his affidavit advised "... Neither I nor my co-counsel, present at each case conference, ever heard such statements." This assertion by Sengbusch is as to case conferences; we would normally assume that it was not restricted to a case conference. But we do note that Spencer refers to it as having occurred at a motion on October 8, 1999. However it seems to have been accepted by counsel for the AG in argument before us that the allegation was as to the words having been spoken at a case conference after the motion.
Greenaway in his affidavit refers to his having dictated his recollection of the events of the October 8, 1999 motion, noting that the Judge:
He added that the [sic, he?] thought that HMQ would be better served by getting this matter on the certification stage and having, what he perceived to be the most important issue dealt with, namely whether or [sic, not?] there is a cause of action. His comment was that HMQ wouldn't have to go to any special trouble if it was ruled that there was no cause of action ...
That note would be going in the opposite direction of what Spencer alleged was said by the Judge. Spencer had early on raised the absurdity of the Crown being the largest (and overwhelming) claimant if the law as asserted by the Crown validly allowed escheat in the case of death. It would therefore be of advantage to have the Judge rule on the validity of the escheat question before going to the expense entailed in examining all files including those as to which the Crown would have taken by escheat if its position on this point were upheld. Thus the Judge was pointing out a course of direction which could save the Crown time and money.
At paragraph 31 of his reasons on the disqualification motion the Judge stated:
31. ... 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.
Curiously the Appeal Book does not contain any note or report which refers to what Spencer asserts happened. We would be of the view that such a statement would be so noted and that those responsible for the managing of this litigation in "Ottawa" would have been informed of such an egregious comment. We note with approval what the Judge says would have been his dropping out of the case immediately if he had made such a remark. Clearly if he had made such a remark it would have been a prejudgment of the case.
The Judge in another case: R. v. Hayward,  O.J. No. 1081 (Gen. Div.) disqualified himself after an O'Connor review of medical and other records, after noting that because the case was obviously going to turn to a great degree on a finding of credibility on the evidence of the complainant, that all concerned in the case would have a most reasonable apprehension that the Judge would be biased based upon his review of the materials, most of which he ordered sealed. It is therefore obvious from this example that the Judge is sensitive to the appropriateness of recusing himself in the proper case.
Of course if something is brought to a judge's attention and he as a "witness" recalls it and confirms that it would reasonably give rise to an apprehension of bias or prejudgment, then that judge will disqualify himself. Obviously that type of case certainly never sees the light of day; what comes up in court are only the cases where the judge does not have such an automatic reaction.
61 Crown Factum, Paragraph 36:
36. A further example occurred at a case conference on January 10, 2001. The issue under discussion at that time related to the time required by the Crown to retain Ernst & Young in order to respond to the Charette report included in the plaintiff's summary damage motion. During the course of that discussion Mr. Justice Brockenshire became highly agitated in perceiving that the Crown was seeking more time than was necessary and characterised the behaviour of the Crown as: "one dinky little bureaucrat dicks around with another bureaucrat". This statement was made in response to John Spencer's advice that he was not at liberty to disclose whether the E&Y retainer agreement was yet in front of either the Treasury Board or the Cabinet for approval.
Koller Affidavit, para. 27, A.B., Vol. I, Tab 8, p. 50
Koller Supplementary Affidavit, paras. 6-9, A.B., Vol. I, Tab 9, pp. 88-90
Spencer Affidavit, para. 20, A.B. Vol. I, Tab 10, p. 111
Analysis on Appeal:
36. Koller's notes of the January 10, 2001 case conference do not make any overt reference to the Judge being "highly agitated in perceiving that that Crown was seeking more time than was necessary". The Judge referred to a "logjam" and the difficulty thereby of setting a return date. If the Judge correctly perceived that the Crown was seeking more time than was necessary and repeatedly doing so without proper justification, then the objective observer would not be perturbed by the Judge becoming agitated. Certainly there appears to be a reasonable foundation for the perception. Please see our views above concerning whether Koller has correctly attributed the "dinky little bureaucrat" reference to the Judge given the "paragraph" spacing and the fact as per the Knights example above of not faithfully noting a change in speaker every time. Sengbusch swore that he did not hear the Judge make the alleged "dinky little bureaucrat" comment. We also note Spencer's earlier gratuitous slam against small businessmen. Further there is no reference in Koller's notes to Spencer's advice about not being able to say where the E&Y retainer approval stood, together with there being no evidence of a minister of the Crown or Privy Council Clerk having given a written objection to such being disclosed pursuant to s. 39(1) of the Canada Evidence Act.
62 Crown Factum, Paragraph 37:
37. This was not the first time that His Honour had put time pressure on the Crown. On December 29, 1999, Justice Brockenshire faxed an article from the ABA Journal to all counsel. The Journal had the following headline on its cover: "The Indian Trust Suit-More than a century later the talk has turned into a bungled federal case." The article relates to a claim against the U.S. federal government claiming that the government lost $10 billion held in trust for Native Americans. As the headline suggests, the article referred to sloppy government record-keeping, and portrayed government lawyers as "sloppy", "in over their heads", "monkeying around" and failing to take the case seriously. The fax cover sheet from Justice Brockenshire includes his comment "I hope our case moves along more smoothly!"
Koller Supplementary Affidavit, para. 8, A.B., Vol. I, Tab 9, p. 89
Analysis on Appeal:
37. The Judge faxed counsel on both sides a copy of this U.S. American Bar Association article concerning a case which had not gone smoothly indicating: "I hope our case moves along more smoothly". The Crown takes offence at the article and the Judge's comment. No objection was taken at the time; the objection comes 1 3/4 years later. One may question the wisdom of sending such an article. Certainly if one were to assume that the Crown side in the subject case were besieged and beleaguered at the time that such an article were sent then perhaps it could be interpreted as negatively commenting on the Crown side. However if one were to receive the article and the Judge's comment when the only given was that the parties and counsel here were really only at the start of somewhat complex litigation which would benefit from attention and the benefit of resources to overcome some of the acknowledged mechanical problems such as record-keeping, then one could see that both sides would educationally benefit from the misfortune of others in the U.S. litigation. The article is not negatively one sided; it contains a number of suggestions which conceivably could be of advantage to both sides in the conduct of this subject litigation in the sense of getting expeditiously to the key issues in a timely manner.
Part of the knowledge of the case management system is to know that it is designed to get cases dealt with as simply and as expeditiously as practically possible while at the same time preserving the rights of the parties to a fair and reasonable process in trial. Spencer's affidavit subsequent to that of Sengbusch did not take issue of Sengbusch's recollection at paragraph 15: "... that even lead Crown counsel, John Spencer, expressed frustration at the pace of the government decision-making process."
A party cannot self create and perpetuate a problem when firstly it should not have allowed the litigation process problem to have arisen in the first place and secondly, it should have taken reasonable measures along the way to ameliorate the self-inflicted difficulty. Based on the record before us we do not see that the Judge applied any undue pressure on the Crown, but rather fairly dealt with and frequently acquiesced with Crown requests for more time.
63 Crown Factum, Paragraph 60:
60. Justice Brockenshire refers to the submission by counsel for the appellant and the position taken in the report with respect to class definition as "provoking and shocking", "egregious breaches" and a failure to comply with an undertaking given to the court. This was despite the fact that the issue had in fact been previously raised by appellant's counsel.
Given his reasons on this issue, it is apparent that Justice Brockenshire effectively prejudged the outcome of the motion on class definition, and yet he saw fit to hear that motion on November 5.
Reasons of Brockenshire J., paras. 30, 45 & 48, A.B., Vol. I, Tab 3, pp. 21, 29, 30
Spencer Affidavit, paras. 23-24, A.B., Vol. I, Tab 10, pp. 112-113
McCaffrey Affidavit, paras. 2-9, 19-22, & 26, A.B., Vol. I, Tab 13, pp. 159-163
Analysis on Appeal:
60. We are of the view that the objective observer would appreciate that the Judge reacted appropriately in concluding that the Crown had attempted to redefine the class definition without any prior advice to him and in a way that was contrary to his understanding of what the E&Y report was to be as set out in his reasons of March 12, 2001. He did not know of the conditional consent to the class definition as set out in the 1999 Yurka letter. Given that he encouraged counsel at the end of the July 5, 2001 case conference to try to reach an understanding on the class definition as discussed above, we do not see that the subsequent motion on November 5, 2001 was effectively prejudged.
64 Crown Factum, Paragraph 61:
61. Moreover, a reasonable person hearing Justice Brockenshire's forceful characterization of the defendant having "stolen the principal" from the plaintiff class could conclude that he had already decided the estates summary judgment motion and could not impartially adjudicate it. Even the plaintiff has not alleged that the appellant "stole" money from the class members.
Analysis on Appeal:
61. See our earlier comments as to paragraph 29 of the Crown factum.
65 Crown Factum, Paragraph 62:
62. Justice Brockenshire also erred in sweeping aside the defendant's evidence as to the "dim view" comment at the October 8, 1999 motion. While admitting the severity of such a comment in relation to prejudgment, Justice Brockenshire stated in his reasons that he could not recall making it, and yet at the same time offered an explanation for it (i.e., that Mr. Spencer had "misheard" another comment). This resolution of the issue is seriously flawed. Justice Brockenshire does not categorically deny that the statement was made, therefore leaving a reasonable observer with an apprehension of bias and prejudgment. Further, he in effect provided evidence which can neither be effectively questioned or challenged, rather than deciding the issue based on the record presented. The effect of Justice Brockenshire's resolution of this issue is that he was both witness and judge in his own cause. As held by Justice Rogin in granting leave, this is "inimical to the appearance of justice'".
Reasons of Brockenshire J., paras. 31-32, A.B., Vol. I, Tab 3, pp. 22-23
Reasons of Rogin J., A.B., Vol. I, Tab 6, p. 38
Analysis on Appeal:
62. See our earlier observations as to paragraph 35 of the Crown factum. We are of the view that it is an unreasonable interpretation of the Judge's reasons on the disqualification motion to say that in essence by stating that if he had made such a startling remark he would have recalled it and further that he would have immediately ceased to be involved in the case if he had made the statement alleged to have been said, he did not "categorically deny the statement was made". In making his observations concerning whether he said anything to the effect alleged, the Crown complains that the Judge "was both witness and judge in his own cause." This is a problem which is inherent to a large degree in the very nature of disqualification motions and especially so when there is no certified transcript or recording. While Rogin J. did say at paragraph 6 of his reasons in granting leave that he had concerns about the "appearance of justice", it is in our view more appropriate to set out the whole of that paragraph to appreciate that he was cognizant of the other aspects involved in balancing the difficulties:
6. Finally in my view it is inimical to the "appearance of justice" for a judge who is asked to recuse himself for apparent bias, to be not only the final arbiter of the very question as well as a witness in the cause. I am nevertheless mindful of the decision of Smith A.C.J.O.C. in R. v. Duong (1998), 129 C.C.C. (3d) p. 430, in that regard.
No one but Spencer appears to recall the comment attributed to the Judge. Sengbusch and Greenaway do not; Greenaway has an almost contemporaneous note to file which would be contrary to the allegation. It is of course difficult to prove the non-existence of a non-fact. We do not interpret the Judge's reasons as concluding that he was the dispositive witness as can be seen by his advice that he "... 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." (emphasis added)
66 Crown Factum, Paragraph 2:
2. At a case conference held on July 5, 2001, and on other occasions, Justice Brockenshire made derogatory comments about public servants, including referring to the "typical stupidity [that] arises in a government action" and describing civil servant behaviour as "one dinky little bureaucrat dicks around with another bureaucrat". At the July 5 case conference, Justice Brockenshire made the following comments indicating pre-judgment; prejudging the substance of an expert's report of the appellant by dismissing it as "trash you throw in the corner" before having even read it; referring to the position taken by appellant's counsel on the issue of class definition as "baloney", even though that issue was yet to be argued in a motion; and characterizing the appellant as having "stole[n] the principal" of the class members, even though that allegation had not been made and the estates portion of the case had yet to be argued. This conduct destroyed the image of impartiality that should exist in a court room and denied the appellant's right to a full and fair hearing of the issues.
Analysis on Appeal:
2. See our previous analysis as to the overview given in this introductory paragraph of the Crown factum.
67 The Crown submitted that the Judge ought to have been guided by The Advocates' Society, Principles of Civility for Advocates:
What Counsel Are Entitled to Expect of the Judiciary
69. Counsel are entitled to expect Judges to treat everyone before the courts with appropriate courtesy.
72. Counsel are entitled to expect Judges will not engage in unjustified reprimands of Counsel, insulting and improper remarks about litigants and witnesses, statements evidencing pre-judgment and intemperate and impatient behaviour.
We think these to be admirable objectives. In the circumstances of this case we do not see that the Judge here has (in controlling the case management process and in the give and take of the case conferences which is important to ensure that difficult issues are identified and appropriately dealt with on a timely basis) not observed the spirit of these objectives. We would also note the admirable objectives as to:
What Judges Can Expect from Counsel
62. Judges are entitled to expect Counsel will treat the Court with candour, fairness and courtesy.
64. Notwithstanding that the parties are engaged in an adversarial process, Judges are entitled to expect that Counsel will assist the Court in doing justice to the case.
65. Judges are entitled to expect Counsel to assist in maintaining the dignity and decorum of the court room and their profession and avoid disorder and disruption.
68 It should also be emphasized that most of the Judge's comments was directed at either counsel, or at the deficiencies of the expert report submitted. It was not focused on the parties. As stated earlier, counsel deserved a severe reprimand although this was not the first time that the defendant's conduct caused delays in the proceedings. A reasonable and informed person would conclude that the counsel received a tongue-lashing, which reprimand was justified, but would not necessarily conclude that the Judge was biased towards the defendant.
69 While not mentioned in the factum, Knights in his affidavit stated at paragraph 6:
6. The explosive response of Justice Brockenshire which immediately followed the comments of Mr. Sengbusch and Mr. Greenaway was unparalleled in all of my experience before the bar. I can only describe it as a judicially unrestrained, high volume, verbal barrage directed at the Crown. Quite literally I was rendered speechless by the ferocity of these actions.
We note that Knights did not allege that he was figuratively rendered speechless; rather he specified "literally". However Koller's notes would indicate that Knights spoke frequently and throughout the case conference after Sengbusch and Greenaway made their remarks. Knights also observed that Sengbusch advised him after the Judge left the room that if that had happened to him, he'd be a puddle. Sengbusch acknowledged saying that but that he said it in humour, saying at paragraph 13 of his affidavit that he "did not envy Mr. Knights having to defend the blatant deception of the government's position, directly to the very judge it had misled".
70 Given the amount of time and reflection which the Crown had following the July 5th case conference to its making its concerns about bias and prejudgment known in late September, it would seem to us that the Crown had more than ample opportunity to check notes, reports, records and other material and to verify to the best of counsel's ability anything which was said but not reduced to writing. We would reasonably assume given the nature of the Crown's complaint and the seriousness of it with the natural fallout and impact on the litigation if the motion for disqualification were successful that the Crown would have put its best foot forward by having affidavits from everyone with a first-hand knowledge of matters accompany the notice of motion and that these affidavits would have given details of anything of significance. It is therefore puzzling why Spencer, Knights, Brucker and McCaffrey would not have sworn their affidavits until a week after Sengbusch swore his affidavit of October 1st and secondly why Koller would raise additional concerns such as the American Bar Association article "The Indian Trust-Suit" in her supplementary affidavit. We do take it that the Crown has now set forth any complaint of materiality notwithstanding Koller's assertion in her earlier affidavit at paragraph 26 that she was only giving examples when she said:
26. Throughout this proceeding Mr. Justice Brockenshire has made numerous comments denigrating civil servants. I was present for certain of these comments and others have been related to me. For example, I am advised by John Spencer, Senior Counsel at the Department of Justice and the counsel having carriage of this file, and do believe, that during the course of one of the early pre-certification attendances in front of Mr. Justice Brockenshire he 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.
71 Following the Judge's comments about the expert report and to counsel, since there was a dispute on "class definition" he proceeded to fix a date for argument on interpretation of the class, which had been raised by the defence in the July 5th case conference. That matter was argued and the Judge delivered his reasons in December 2001. In other words, after July 5th, the Judge continued to case manage the case, and made decisions on issues between the parties, as he had done from the outset. Such conduct of allowing the class definition issue to be reopened, on the part of the Judge, is hardly consistent with the allegations by the defendant that their submissions would be dismissed out of hand. It is interesting that Crown counsel filed no material before its September 27, 2001 motion notice for motions scheduled for October/November 2001, despite these motions having been scheduled for several months. As well realistically, is there any doubt that, given the issues, the money involved, the resources available to both parties, that the (future) decisions of the Judge will be reviewed by a higher tribunal?
72 There appears to be some dispute as to some of the conclusions that can be drawn from what the Judge said or was alleged to have said. Nevertheless, in our view the actions of the defence team (of redefining the class definition without the approval of the Judge after the 1999 order consented to by the Crown and without advance notice to plaintiff's counsel) were inexcusable. In our opinion, it would be sending the wrong message to allow a party to act in such a high handed and cavalier fashion, and when its counsel are reprimanded, suggest that the presiding judge is biased.
73 When the overall situation is viewed in context, we are of the opinion that the Judge did not prejudge any matter yet to be decided by him and that he was not biased against the Crown or Crown counsel. Nor in our view is there any objective basis to a reasonable apprehension of prejudgment or bias. We reach this conclusion on an examination of the complaints, be they taken on an individual basis or on a cumulative or aggregate basis (including as to those complaints which were not made on a timely basis but could possibly be considered as being straws which break the camel's back as to the incidents of July 5, 2001).
74 In the end result we are of the view that the objective reasonable person having full knowledge of the facts and the context of the situation would conclude that the Judge did not cross over the line so as to result in a reasonable apprehension of bias and of prejudgment. That being said we think it appropriate to observe that the Judge did not run a perfect race; there was some difficulty in his style with some of the hurdles - but he did clear all of them. Of course, we in the judiciary and counsel should all strive for perfection, even while appreciating that this goal is always out of grasp.
75 Having considered and weighed all of the factors above, over and above the lack of timeliness in bringing on the complaint, the Crown has not convinced us that there is any error in the decision of the Judge in refusing the disqualification motion. We do not see that the Crown has demonstrated an air of reality to its complaint once that complaint has been examined in the sunlight of the particular facts of this case, including the historical background and the atmosphere together with the concepts of class proceedings litigation and case management. We do not doubt the sincerity of the AG in bringing on the disqualification motion and appeal nor the AG's view as to what was said. However it appears apparent from the affidavits presented by the Crown that, in part, there was a reflected misapprehension or misinterpretation of what was said, possibly because the affiants were looking at it from a somewhat subjective point of view in hotly contested litigation (as opposed to from an objective point of view) and possibly because certain of the alleged statements may have been misheard or misattributed, among other reasons.
76 The appeal by the AG is therefore dismissed for the reasons stated above and on the joint and several grounds of (a) the lack of timeliness in making the complaint and (b) the merits of the complaint based on the two-fold objective elements of the test.
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Released: May 28, 2002
a) Page 7, Paragraph  - "At paragraph 8, ... quoted Esson C.J. as follows:"
Change = Esson C.J. (as opposed to Essen C.J.)
b) Page 18, Paragraph  (g) - "... change in personnel, ... which has been in ..."
Change = which has been (as opposed to which as been)