Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed the recent decision of Justice Perell in Fontaine v. Canada (Attorney General), 2021 ONSC 4363. This decision arose from a recusal motion, where the moving party requested that Justice Perell recuse himself as a result of real or a reasonable apprehension of bias.

The moving party argued that Justice Perell should recuse himself from hearing the moving party’s Request for Directions (“RFD”) because was biased, or there was a reasonable apprehension of bias against:

(a) the Independent Assessment Process (“IAP”) claimants of St. Anne’s Indian Residential School in favour of the Attorney General of Canada (“Canada”);

(b) against the moving party personally; and

(c) her counsel Fay Brunning.

Background

This was a decision stemming from the administration of the Indian Residential School Settlement Agreement. The Settlement Agreement provides two forms of financial compensation to former students of residential schools. First is the Common Experience Payment, which compensates claimants based on the amount of time they were at the schools. The second compensation system allows former students who were victims of abuse and wrongful acts resulting in serious psychological consequences to bring a claim under the Independent Assessment Process (“IAP”).

A simplified and expedited process for Courts to implement and administer the Settlement Agreement is known as a Request for Direction, or RFD.

This decision arose on a recusal motion brought in the context of a RFD pertaining to an IAP claim. The RFD that was the subject of this recusal motion dealt with the issue of whether the claim against Canada, which has been joined to a solicitor’s negligence case, would be tried in the normal course or as an aspect of the administration of the Settlement Agreement.

Law

The test for reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly.

The test for a reasonable apprehension of bias has two elements of objectivity:

1. the measure is that of the reasonable and informed person; and
2. his or her apprehension of bias must be reasonable.

An allegation of bias or a reasonable apprehension of bias is a serious allegation that calls into question the personal integrity of the judge, and the integrity of the entire administration of justice. Determining whether there is a reasonable apprehension of bias is an objective, fact-specific inquiry. The party alleging bias has the onus of proving it, and the threshold of proof is a high one.

Analysis

Justice Perell noted that the most serious allegation is that he has been biased against the St. Anne’s IAP claimants in favour of Canada.

The central allegation is that Justice Perell has allowed Canada to hide documents that should have been produced to IAP Claimants. The judge rejects this assertion, noting that it was his Orders that required Canada to produce tens of thousands of documents that Canada had failed to disclose.

He states further that the fact he has not found non-compliance by Canada is not evidence of bias or a reasonable apprehension of bias. He states further that a disgruntled litigant’s unhappiness about an outcome is not evidence of bias. If a mistake was made, then the remedy is an appeal, not a recusal motion.

Further, it was alleged that Justice Perell was biased against the claimant personally, both directly and derivatively due to her legal representation by Ms. Brunning in another RFD. In a prior RFD, Justice Perell had stated in a decision that the claimant had eventually received a substantial IAP award. The claimant appealed the decision, a ground of appeal being that Justice Perell mentioned the amount of her award. His decision was upheld by the Court of Appeal.

The claimant accordingly alleged that Justice Perell was biased against her because he had embarrassed her by revealing that she had received a substantial IAP award. Justice Perell stated that there was no merit to this allegation, and further that the amount of the award was relevant to the issues to be addressed. 

The claimant also argued that because the Divisional Court held that Justice Perell should have recused himself from the adjudication of a previous claim for costs against Ms. Brunning personally, and because he recused himself from another RFD in which Ms. Brunning is counsel, there is a reasonable apprehension of bias because he did not recuse himself in this RFD.

To this, the judge states that this allegation is illogical and baseless. Ms. Brunning is not the lawyer of record for this immediate case and the circumstances regarding the prior recusals were exceptional and narrow and did not extend to a general disqualification associated with this claimant. The claimant’s loyalty to Ms. Brunning from other retainers is unrelated to this RFD, which decides nothing on its merits and is largely a technical jurisdictional issue.

Conclusion

The recusal motion was dismissed, with costs to Canada, if demanded.