Recent case: The function of appeals and determining judge bias

Van Wieren v Bush, 2015 ONSC 4104

The father appealed to the Superior Court of Justice against an Ontario Court of Justice trial decision about custody and access, claiming that the trial judge, Justice Hardman, was biased against him, failed to consider the best interests of the child and made an order that was contrary to the evidence.

In hearing the appeal, Justice Campbell first makes the point that findings of fact are not to be reversed unless there has been a “palpable and overriding error” and that there should be no intervention by an appeal court unless there has been a manifest error, a significant misapprehension of the evidence or the evidence has been ignored.

Justice Campbell stresses the deference that is owed to the trial judge, especially in family law cases: “It is not the function of the Appeal court to retry the case. If there is some evidence upon which the trial judge could have reached her factual conclusions, the appeal court will not intervene.”

He says that the only ground he will consider in the appeal is the allegation by the father that the judge was biased against him. He reviews case law provided by the father with respect to reasonable apprehension of bias and notes that:

  • Courts are to be held to the highest standards of impartiality
  • There is a strong presumption of judicial impartiality that can be rebutted by evidence of a reasonable apprehension of bias
  • The test for bias is two-fold: the person considering the alleged bias must be reasonable and the apprehension of bias itself must be reasonable in the circumstances of the case:

The question is whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias. The inquiry will depend entirely on the facts of the case.

  • Fairness must be assessed in the context of the trial as a whole
  • Although a trial judge may intervene from time to time and question witnesses for the purpose of clarifying the evidence, there is a limit to what is permissible
  • Prejudgment on the part of the judge is relevant to a consideration of perceived bias
  • The threshold for finding an apprehension of bias is high

Justice Campbell acknowledges that Justice Hardman intervened in the case in a number of ways. However, he says, based on his review of the transcript of the entire trial (which lasted 8 days), he finds a clear difference between this case and those cited by the father.

He says that Justice Hardman did not champion the mother’s case or theory and that her interventions were intended to clarify and focus the evidence on the matters in issue in the trial.

Within the context of the entire trial and [the judge’s] very active involvement in her quest for all of the evidence she needed, I am not satisfied that a “reasonable person” would have this impression or conclude that she was “predisposed to decide the issues before (her) in favour of the [mother.]”

Justice Campbell notes that there has been a shift in the style of presiding over family court cases in recent years:

Like counsel presenting cases at trial, judges develop their own ‘style’ of presiding over those trials. Some judges fit the traditional role model as passive receivers of whatever evidence counsel decide is relevant and necessary to present to prove their case and to achieve the result that their client seeks. This passive, receiver-of-evidence role is mandated in criminal proceedings where the onus of proof is very, very different than in civil trials. The obligation of the Crown is to prove its case beyond doubt. If the Crown neglects to provide sufficient evidence to achieve a conviction, trial judges are strongly discouraged from questioning witnesses at all on a quest to “seek the truth,” by independently launching any inquiry into areas not introduced by counsel.

Other family-law trial-judge styles are much more a pro-active role, casting themselves in the role as a seeker of all the evidence that (s)he believes is needed in order to make fully informed decisions.

These second type of judges are very engaged gatekeepers of the fact-finding process, wherein they perceive themselves as responsible for husbanding scarce judicial resources and a full participant . . . not only at the pre-trial stage of proceedings but at the trial-hearing stage as well.

Justice Campbell concludes in this case that, while significant, Justice Hardman’s interventions were appropriate and did not raise a reasonable apprehension of bias:

She is at times blunt, direct, persistent, plain-spoken and on a few occasions unduly abrupt. However, I find that what she is not, is biased or predisposed to her ultimate decision, just because, with counsel’s help, she ferreted out the evidence that she knew she needed to make an informed decision.

He found that Justice Hardman was not predisposed or biased against the father, but that it was his own and his parents’ decisions, evasions and evidence that led her to her conclusion and decision.

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