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Appeal Court Finds Judicial Bias on Jurisdiction Motion

In a recently released decision, the Ontario Court of Appeal found that a motion judge’s actions on a jurisdiction motion gave rise to a reasonable apprehension of bias.  As a result, the Court of Appeal set aside the order made at the motion and ordered that the jurisdiction motion be heard again before a different judge of the Ontario Superior Court.  The full decision is report at Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60.

In the action, various plaintiffs, including plaintiffs in Ontario, sued four foreign defendants for breach of franchise agreements.  The defendants brought a motion to dismiss the action arguing that the Ontario court lacked jurisdiction.  In the alternative, they asked the court to stay the action on the basis of forum non conveniens.  The motion was heard before Justice David Corbett of the Ontario Superior Court of Justice.  Justice Corbett dismissed the motion.  He found that there was jurisdiction simpliciterin Ontario for all claims, including for those claims that had arisen in other Canadian provinces.  He also held that Ontario was the most convenient forum in which a single proceeding would be held. 

The defendants appealed from Justice Corbett’s findings relating to jurisdiction simpliciter and forum non conveniens.  However, they also raised, as a ground of appeal, that Justice Corbett’s comments and conduct during the course of the motion raised a reasonable apprehension of bias.  The Court of Appeal agreed with this latter submission.

There were two hearings before Justice Corbett.  At the first hearing, the foreign defendants objected to the affidavit evidence filed by the plaintiffs’ sole affiant on the basis that it was extensively based on information without identifying the source of the information and setting out why the affiant believed the information to be true.  Justice Corbett agreed that the evidence presented by the plaintiffs “would be fatal” to their position on the motion.  He therefore adjourned the motion on his own initiative and ordered the plaintiffs to cure the defective affidavit by serving a further affidavit. 

After cross-examinations were held, the parties returned before Justice Corbett to argue the motion.  Prior to the lunch breach and before hearing argument on joinder and forum non conveniens issues, Justice Corbett rendered his decision dismissing the motion and referring to it as “an abuse of process”.

Justice Corbett advised counsel that he would be delivering further reasons “for the purposes of any appeal of this decision”.   In his amended endorsement, Justice Corbett dealt with the issues of jurisdiction and joinder presented on the motion.  He concluded the endorsement with a section entitled “Process of this Motion” which he identified as necessary because the motion was “bad” and called for a sterner response.   In the section he criticized the defendants for the amount of time they took to prepare their materials for the initial hearing, and described their objection to the respondents’ evidence as “technical” asking rhetorically “What’s the point?” and concluded that the defendants’ cross-examination on the affidavits were a waste of time.

The decision of a three judge panel of the Court of Appeal – Justices Weiler, Epstein and Huscroft – was written by Justice Epstein.  She found that at various points in the proceedings, Justice Corbett had conducted himself in a manner that gave the appearance that he favoured the plaintiffs’ position.  For example, a reasonable observer could perceive the adjournment that he gave at the first hearing on his own initiative as a judge going out of his way to assist the plaintiffs.  That perception was strengthened by Justice Corbett’s dismissive comment that he did not anticipate that the defendants’ cross-examination of the plaintiffs on their new material would add much to the background.

In the second hearing, Justice Corbett dismissed the motion halfway through the full day that had been scheduled without giving counsel the opportunity to make oral submissions on two issues that he properly identified as “principal arguments” joinder of claims and forum non conveniens

Justice Epstein found that deciding the jurisdictional challenge without allowing for oral argument on these major issues was a cause for particular concern in a case involving multiple parties on both sides.  Although Justice Corbett acknowledged the legitimacy of the defendants’ positions on a few occasions, the overall tenor of his remarks was derisive and suggested a view critical of jurisdiction motions and of this motion in particular, i.e. his finding that the motion was an “abuse of process” and a “colossal  waste of time”.   Justice Epstein held that Justice Corbett’s finding that the motion was an abuse of process, made on his own initiative without the benefit of submissions or reference to any legal authority was unwarranted.  Further, Justice Corbett made discourteous comments towards the defendants’ counsel for no apparent reason.  In all three endorsements he repeatedly criticized defendants’ counsel on matters including their advocacy skills, knowledge of the law and handling of the matter.  He made a number of comments for which Justice Epstein found no justification.

Justice Epstein held that an informed and reasonable observer would see Justice Corbett’s amended endorsement, i.e. the endorsement he prepared for appeal purposes, as a desire by Justice Corbett to defend his decision to dismiss the motion.  His comments were motivated by his desire to respond to anticipated challenges to his decision.  Justice Corbett appeared to insinuate himself into the appeal process by attempting to defend his actions and his comments.

Justice Epstein considered the legal principles which apply to a motion for judicial bias.  She endorsed the decision of the Supreme Court of Canada in Yukon Francophone Schoolboard, Education Area No. 23 v. Yukon (Attorney General): 

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?

Having regard to that question, Justice Epstein concluded that she had no doubt that Justice Corbett was well-intentioned and that he had put a great deal of effort into resolving the jurisdiction issue.  However, her review of the three endorsements led her to conclude that Justice Corbett’s actions gave rise to a reasonable apprehension of bias.  In her opinion, the cumulative effect of Justice Corbett’s conduct was that an informed, reasonable observer, viewing the proceedings as a whole, would conclude that the defendants had not received a fair hearing to which they were entitled.