Apr 2, 2014
--Judge’s decision in lengthy trial involving funding for French schools set aside on basis of apprehension of bias—Trial transcript evidencing judge’s unreasonable and taunting disrespect for defendant’s counsel and judge’s alignment with plaintiff’s interests--
Background: The plaintiff, the francophone school board (“CSFY”) brought an action against the defendant, the Yukon government, alleging it had failed to accord the CSFY adequate management and control of French language education in accordance with the requirements of s. 23 of the Canadian Charter of Rights and Freedoms; had violated the Languages Act; and had breached fiduciary duties by re-allocating funds earmarked for minority language education to french as a second language instruction. The trial judge held in favour of the plaintiff, granting a number of remedies. In a scathing judgment relating to costs, the judge also awarded costs in the amount of $1.4 million, including solicitor and own and punitive costs.The government appealed, arguing that there was a reasonable apprehension that the judge was biased, and alleging a number of errors of fact and law.
Appeal decision: Appeal allowed. The judge’s comportment on a number of occasions gave rise to a reasonable apprehension of bias. A parent whose children had attended one of CSFY’s schools testified that his children had left the school because of lack of special needs resources. Defendant’s counsel attempted to cross-examine the parent using information in the children’s school files to show that their needs had been met. The judge indicated at the outset that he was inclined to agree with CSFY’s objection that use of the files was inappropriate without the consent of the parents but he would await further argument on the following day. However, on the following day, he ruled that that the defendant’s counsel conduct in obtaining the school files was “objectionable and reprehensible”, unequivocally refused to listen to counsel’s legal submissions and repeatedly returned to the issue of whether parental consent had been obtained. The transcript of this exchange created the impression that the judge’s questions were not genuinely directed at obtaining information but rather that he was taunting counsel.At the end of the first phase of the trial, the judge encouraged the parties to enter into a settlement, highlighting the public nature of judgments and giving a clear indication that he was prepared to find against the defendant on the fiduciary issue. This created an impression of a pre-judgment of issues. The judge’s remarks effectively conveyed a threat that unless a settlement was reached, a judgment critical of the defendant and its employees would be pronounced. In placing such pressure on the defendant, the judge inappropriately aligned himself with the interests of the CSFY. It was also unseemly for the judge to recommend that a public body enter into a settlement in order to keep matters out of the public gaze. Settlements by public bodies must be driven by the public interest, not political concerns. There was no basis for the judge to conclude that one of the defendant’s witnesses had intentionally tried to deceive the court and the judge’s testy reaction to counsel’s objections on this matter could not be attributable to anything said by counsel. While these incidents, of themselves, were not strong evidence of bias, they were of some import in the overall context. The judge’s prior indication that he would refuse the defendant’s application to admit affidavit evidence of a witness who could not give viva voce evidence due to a recent stroke and resulting asphasia, his veiled threat to impose special costs, his statement that the witness was not an important one and his accusing counsel of engaging in “delay tactics” in this matter were strongly indicative of bias against counsel. The judge also demonstrated an apprehension of bias in his handling of costs. CSFY’s claim for solicitor and client and punitive costs took the defendant by surprise and it sought leave to file a response. The judge asked the defendant to provide an affidavit setting out the details of its fees and disbursements, despite the fact that the defendant was not claiming for those costs, and then refused leave to file a response. This procedure was grossly unfair and when viewed in context of other incidents, was indicative of apprehension of bias at trial, not just in the costs proceeding. The allegation that the judge made derisory facial expressions and gestures could not be made out on the basis of the transcript; however, the transcript indicated that the judge treated defendant’s counsel with a lack of respect on many occasions and this was a factor bearing on apprehension of bias. Finally, given the presumption of judicial impartiality, the judge’s former connections to francophone education in Alberta did not raise concerns about bias. However, his continuing role as a governor of a francophone foundation (“FFA”) did. His continued association with the FFA was not unethical; however, given that the FFA’s mission statement showed a particular vision of the francophone community, the judge was required to recuse himself from cases in which issues touching on the FFA’s vision might be raised. Because almost all of the orders made by the judge depended on factual findings, they were vacated and a new trial ordered. However, the court was prepared to rule on three self-contained issues of law. First, the judge erred in holding that Education Labour Relations Act allowed the CSFY to engage principals on term contracts rather as a permanent employee. He also erred in finding that s. 23 of the Charter affords minority language school boards an automatic right to admit the children of non-rights-holders to their schools. Finally, with respect to the judge’s order under the Languages Act that all communications between CSFY and the government be in french, CSFY was not a “member of the public” for the purposes of the Act. Claims of rights under that statute ought to be removed from the instant litigation and adjudicated in proceedings brought by affected individuals. Although the case was not the sort of very exceptional one justifying an award of costs to the unsuccessful party, it did engage the court’s discretion to deny the successful appellant its costs; accordingly each party was to bear its own costs of the appeal.