Date: 20050323
Docket: T-1697-97
Citation: 2005 FC 405
BETWEEN:
FRANKLIN LUMBER LTD.
Plaintiff
and
THE SHIP "ESSINGTON II"
HER OWNERS AND ALL OTHERS INTERESTED
AND BULLCO PILE & DREDGE LTD.
Defendants
[1] These reasons arise out of a motion filed 12 January 2005, seeking that I recuse myself from involvement in this action commenced 7 August, 1997 which, among other matters, includes a motion filed 24 December, 2004, for judicial sale of the Essington II. The Essington II, owned by the Defendant Bullco Pile & Dredge Ltd. ("Bullco") was secured, in favour of the Plaintiff, Franklin Lumber Ltd. ("Franklin") by a registered first marine mortgage from Bullco.
[2] I denied the motion that I recuse myself, by an order signed 13 January 2005. These are reasons promised on 12 January, 2005 at the time the order was made from the Bench. I turn first to some relevant background.
BACKGROUND
[3] At the commencement of the hearing of this motion for the sale of the Essington II, on 5 January 2005, I advised counsel that I believed, perhaps a dozen years earlier, that I had acted for the Royal Bank of Canada to place a mortgage on the Essington II. I also indicated that I had met Mr. Richard Smeal, principal of the mortgagor, Bullco, at that time. While there are apparently few documents still in existence and the relevant file no longer exists at my former law firm, it appears, from a more contemporaineous Shipping Registry transcript, that the Royal Bank of Canada mortgage to secure a loan from the Royal Bank, for the purchase of the Essington II, was put in place 3 April 1992.
[4] Counsel advised me that they were aware of my 1992 involvement on behalf of the Royal Bank and that it did not represent a difficulty to anyone. About two years later, on 17 February 1994, I received an appointment to what was then the Federal Court of Canada, as a prothonotary, thus concluding my marine law practice. The present sale is pursuant to a mortgage registered 16 May 1997, given by Bullco to Franklin. In any event the vessel sale motion was adjourned from 5 January 2005, to a special hearing date, 12 January 2005.
[5] On 10 January 2005 counsel for Bullco wrote to the Court to advise that an issue had arisen as to whether a Mr. Charles Green, apparently a principal of Franklin at that time and on whose behalf a mortgage from Bullco had been registered 28 December 1994, was acting as trustee when the 1997 mortgage to Franklin replaced the December 1994 mortgage to Charles Green. Counsel advised that his client believed that I had some involvement in the December 1994 mortgage, had been introduced to Charles Green by the principal of Bullco and that I had taken instructions, although my former partner had done the work. This resulted in a conference call with counsel on 11 January 2005, at which time I advised counsel for Bullco to bring an appropriate motion, supported by affidavit material, so that the recusal issue might be dealt with the next day immediately before the motion for the sale of the vessel.
[6] On 12 January 2005 counsel for Bullco attempted to bring an oral motion for recusal. I allowed a short adjournment so that counsel for Bullco might prepare a Notice of Motion on short leave. That motion sought as relief an order:
(a) Prothonotary Hargrave recuse himself from further involvement with this action;
(b) short leave;
(c) dispensation of the need for a Motion Record.
The grounds set out in the motion are:
A central issue in this case is whether or not Charles Green was acting as trustee for Franklin Lumber Ltd. at the time he advanced funds that are purported secured by the mortgage relied upon by the Plaintiff in the action herein;
Prior to being appointed to the Bench Prothonotary Hargrave acted as solicitor for Charles Green & may have taken initial instructions regarding the preparation of a mortgage to secure the funds advanced while Charles Green was acting as trustee.
[7] On reading the motion, following the short adjournment on 12 January 2005, having previously read a brief affidavit of Richard Smeal, I advised counsel that I had no recollection of meeting Mr. Charles Green, since deceased, or of taking instruction to prepare a mortgage to secure funds advanced, apparently to pay out the Royal Bank mortgage of 1992 and indeed that I had left my former law firm, to take up the Federal Court appointment as prothonotary, some ten and a half months before the mortgage from Bullco to Charles Green was put in place. This is not to say that Mr. Smeal may not, as he deposes in an affidavit of 11 January 2005, have introduced Mr. Green to me at some unspecified time shortly before I was appointed as a Federal Court of Canada prothonotary on 17 February, 2004, but rather that I have no recollection of that event, or of taking instruction from Mr. Green, or of doing any work on the matter, which appears to have been done some time in 1994, by my partner, the matter culminating in the registration of a mortgage, in favour of Charles Green, on 28 December 1994. Here I would again note that the mortgage at issue, under which the sale of the vessel was sought, was one of 16 May 1997, from Bullco to Franklin, the 28 December 1994 mortgage to Charles Green, according to Shipping Registry records, subsequently being discharged. This reconstruction is by way of affidavit material provided by the parties and by way of a transcript from the Registrar of Shipping: unfortunately both files surrounding the spring 1992 mortgage security and the December 1994 mortgage security apparently no longer exist.
[8] Finally, I was advised that the December 1994 mortgage security given to Charles Green reflected an accounting prepared by Ms. Mavis Smeal, this whole matter being a family affair, involving advances made largely, but not entirely before 17 February 1994, for the accounting document contains entries in March, April and as late as 3 June 1994 and thus the amount of the refinancing by Mr. Green to be secured by the 28 December 1994 mortgage, could not have been known until some three and a half months after I had left the firm and ceased to practise as a lawyer.
CONSIDERATION
[9] Mr. Justice Gibson faced an analogous situation in Jose Pereira E Hijos, S.A. v. Canada (Attorney General), an unreported 14 December 2004 decision, docket T-1602-95, 2004 FC 2738. That decision was not cited to me, however in writing these reasons I have been guided by his approach to the discussion of bias.
[10] The starting point for a consideration of a motion for recusal is that set out in the minority reasons of Mr. Justice de Grandpré in Committee for Justice and Liberty v. Canada (National Energy Board) [1978] 1 S.C.R. 369 at 394:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, 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. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is mor likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."
This passage sets out the various elements, which might give rise to an apprehension of bias, being whether a reasonable and right minded person, thinking on the question and obtaining the required information, then viewing it in a realistic and practical matter, would conclude it more likely than not that the decision, consciously or unconsciously, would not be fairly made. This test, from Committee for Justice and Liberty, has been applied on many occasions, including fairly recently by the Supreme Court in Wewaykum Indian Band v. Canada [2003] 2 S.C.R. 259, a judgment of the Court, a decision to which I will return in due course. Still dealing with Committee for Justice and Liberty I am not able to conclude that the affiant of the affidavit in support of the recusal motion could have thought the matter through and "realistically and practically" concluded it more likely than not that the decision would be unfair.
[11] Because a motion for recusal, on the basis of bias, calls into question not simply personal integrity, but also the integrity of the whole system of administration of justice, be it by a judge, a prothonotary or some other judicial officer, the threshold for the finding of a real or a perceived bias has been set at a high level: the person alleging bias must demonstrate a real likelihood or probability of bias, not a mere suspicion. Here I would refer to R. v. S. (R.D.) [1997] 3 S.C.R. 484, Mr. Justice Cory endorsing the view of Justice de Grandpré, in Committee for Justice and Liberty, at 394-395, to the effect that the grounds for an apprehension of bias must be substantial. Mr. Justice Cory wrote, at 531-532:
... English and Canadian case law does properly support the appellant's contention that a real likelihood or probability of bias must be demonstrated, and that a mere suspicion is not enough. See R. v. Camborne Justices, Ex parte Pearce, [1954] 2 All E.R. 850 (Q.B.D.); Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.); R. v. Gough, [1993] 2 W.L.R. 883 (H.L.); Bertram, supra, at p. 53; Stark, supra, at para. 74; Gushman, supra, at para. 30.
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
I am satisfied that counsel for Bullco did not undertake any of this lightly. Moreover he did a creditable job with the somewhat thin material at his disposal.
[12] Mr. Justice Cory pointed out, at page 532, that the onus lies with the person alleging bias and that whether or not bias arises will entirely depend upon the facts.
[13] On taking up the position of prothonotary I was sworn in by Chief Justice Isaac. I undertook to deal with all Court matters coming before me impartially: yet most of us, including prothonotaries have, to one degree or another, personal biases, which we must strive to overcome, a point made by Mr. Justice Cory at pages 532 and 533 of R. v. S. He then continued at page 533 as follows:
Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. ... This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with "cogent evidence" that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias.
The point Mr. Justice Cory makes here is that while the threshold for establishing bias is high, nevertheless it can be displaced with cogent evidence showing that the judge has done something to give rise to a reasonable apprehension of bias. Indeed, judges and by extension prothonotaries, are properly held to the highest standards of impartiality:
It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct. (loc. cit.)
[14] Mr. Justice Cory makes the point, eloquently, that the judiciary do bring with them sympathies, antipathies or attitudes, but that a judge is required to recognize, make allowances for and question all of this baggage:
The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial
does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.
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)
[pp. 533-534]
[15] Both Mr. Justice Cory, in R. v. S. and Mr. Justice Gibson in Jose Pereira E Hijos S.A. (supra), at paragraph 13, make the point that all of this inevitably brings with it much personal and professional experience yet regardless of this and taking into previous work and professional experience, the judiciary owe:
... a fundamental duty to the community to render impartial decisions and to appear impartial. It follows that judges must strive to ensure that no word or action during the course of the trial or in delivering judgment might leave the reasonable, informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations.
[16] From Mr. Justice Cory's reasons in R. v. S. Mr. Justice Gibson extracted three principles:
... first, each allegation of reasonable apprehension of bias must be determined on its own facts; second, where an allegation of reasonable apprehension of bias arises, the onus lies on the person alleging the reasonable apprehension; and finally, against a high threshold and a presumption that judges will carry out their oath in office, that presumption can only be displaced with "cogent evidence".
(Jose Pereira E Hijos S.A. at para. 14)
[17] In Jose Pereira E Hijos S.A. bias was said to rest on the past general experience of a judge who was counsel with the Federal Department of Justice, a position which had terminated, on appointment to the Bench, nearly a dozen years earlier. Of relevance, in a more specific way, in the present instance, is Weywakum Indian Band v. Canada (supra) involving the work of one of the Supreme Court of Canada judges, fifteen years earlier, when he had been Federal Associate Deputy Minister of Justice. There, Mr. Justice Binnie had a part in the file leading to the matter before the Court, not a direct part, but rather a limited supervisory and administrative role. Moreover, while some documentation did establish some involvement in the land dispute, predating the statement of claim, Mr. Justice Binnie had no recollection and brought with him, in participating in the Court's decision on the case, no knowledge of his earlier participation. At issue in Weywakum Indian Band was not actual bias, but the consideration of a possible reasonable apprehension of bias. The Supreme Court used, in its analysis, the often referred to minority reasons of Justice de Grandpré in Committee for Justice and Liberty, the passage at page 395 as to the apprehension of bias:
The grounds for this apprehension must, however, be substantial, and I ... refuse to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience.".
The Supreme Court in Weywakum went on, at page 295, to note that particular circumstances were of supreme importance and that by reason of the nature of bias and disqualification "... it may well be that judges have recused themselves in cases where it was, strictly speaking, not legally necessary to do so." (loc. cit.). From there the Supreme Court went on to observe:
... it cannot realistically be held that Binnie J. acted as counsel in the present case and the limited extent of his participation does not reasonably support a reasonable apprehension of bias. To repeat, what is germane is the nature and extent of Binnie J.'s role.
[pp. 296 and 297]
There the Court repeated the proposition that broad Justice Department duties demonstrated a limited supervisory and administrative role, perhaps going beyond pro forma management of the file, but certainly illustrative of no active role after the claim had been filed. The Supreme Court then turned to the passage of time and the lack of recollection of anything involving the case. The Court felt that the significant factor which stood out, in the perspective of the reasonable person assessing the impact of involvement of Mr. Justice Binnie, was the passage of time, some fifteen years in the past, which the Court felt was obviously significant, particularly coupled with the fact that Mr. Justice Binnie had no recollection of his involvement in the file (see pp. 298 and 299 of Weywakum). The Court went on to observe, as to lack of recollection of involvement of the file:
The question is whether the reasonable person's assessment is affected by his statement, in the light of the context - that is, in the light of the amount of time that has passed, coupled with the limited administrative and supervisory role Binnie played in this file. In our view, it is a factor that the reasonable person would properly consider, and it makes bias or its apprehension improbable in the circumstances.
[p. 299]
[18] Immediately following the above passage the Supreme Court acknowledged that a lack of recollection was relevant, yet not decisive (loc. cit.). However, in the result, the Supreme Court was convinced that the limited administrative and supervisory role played by Mr. Justice Binnie, fifteen years previously, would not allow a reasonable person to come to the conclusion that there was any effect, even an unconscious effect, going to impartiality (p. 300).
[19] Mr. Justice Gibson concluded his reasons in Jose Pereira E Hijos S.A. with a memorable passage, written by Mr. Justice Dubé, in Fogal v. Canada (1999) 164 F.T.R. 99. There Mr. Justice Dubé had been asked to recuse himself because, many years earlier, he had been Minister of Veterans Affairs and Minister of Public Works and thus, in the view of the applicants, had past political connections which, in the context of their particular application, were said to raise an apprehension of bias. Mr. Justice Dubé recognized that judges brought past experiences with them but that, like other judges, he had taken an oath of office on appointment to the Federal Court to be fair and impartial and that he had dealt with all manner of proceedings in that way. He had not been asked to recuse himself before and did not intend to recuse himself in Fogal, observing that:
Judges do not descend from heaven. They come from various fields of activities. Some of us are former academics, others were in the public service, others practiced law in small towns or large firms. And some of us were in politics. The variety of our individual careers is a rich source of knowledge and experience for the courts. Once we took our oath of office, we divorced ourselves from our past and dedicated ourselves to our new vocation. Our duty is to render justice without fear or favours.
[p. 103]
Important here is that for a successful jurist the oath of office, taken on appointment, is a watershed between past activities and dedication to a new vocation in and duty to the system of justice, that duty being the proper rendering of justice.
[20] All of the material which was brought to my attention and to which I have referred deals with instances in which judges have been asked to recuse themselves. However the same principles apply to prothonotaries. We also bring with us similar life experiences, existing sympathies, vulnerabilities, antipathies and attitudes. Neither do prothonotaries descend from heaven, but bring with them varied past experience. Indeed, as Mr. Justice Cory wrote, in R. v. S., judges bring all of this with them and they are required "... to recognize, consciously allow for, and perhaps to question, all of the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave." (p. 534 of R. v. S. (supra)).
CONCLUSION
[21] While reading the material in preparing for the recusal motion, while listening to counsel and in considering of the situation before dismissing the motion for recusal from the Bench, I thought of much of what I set out above. I considered that counsel had laid out, in a workmanlike manner, the general law and that was what I had to work with, there being cited to me no cases directly on point. I considered that the essence of the judicial process is the fair determination of a case on relevant evidence properly brought before the Court. I considered my alleged role, that of meeting someone who became a client of my partner and of taking some form of instruction: assuming this occurred, both were now long forgotten. I also considered the motion for recusal in the context of the main motion, for the sale of the vessel: I realized that even had I met with Mr. Green, in early 1994, that had no bearing, either on the basis of the sale motion at issue, or overall, were the merits of the case itself at issue, as alleged or as set out in the pleadings. At that point I was of the view that even accepting Mr. Smeal's advice, as to what he believed had occurred, the facts of the matter did not come near to the standard for recusal set out in the case law.
[22] I briefly considered recusing myself to avoid having to deal with the problem at all, but recognized that such an easy solution was exceedingly improper, given all of the facts, the circumstances and what I had undertaken, on being appointed a prothonotary of the Federal Court, nearly eleven years earlier. I therefore dismissed the motion.
[23] In recognition of the effort that counsel for the Plaintiff had put into opposing the recusal motion, for the sale of the Essington II was time sensitive, but not so as to provide an indemnity I considered the position of counsel for Bullco, who suggested $700 in costs and the position of counsel for Franklin, who suggested up to $2,000 for costs, I awarded $1,000 costs, payable forthwith, a relatively modest amount for costs so as not to discourage counsel from bringing such motions, but also more than a mere token amount, to reflect the seriousness of the motion.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1697-97
STYLE OF CAUSE: Franklin Lumber Ltd. v. The Ship "Essington II" et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 12, 2005
REASONS FOR ORDER : HARGRAVE P.
DATED: March 23, 2005
APPEARANCES:
Mr. David McEwen FOR PLAINTIFF
Mr. Brad Caldwell FOR DEFENDANT
SOLICITORS OF RECORD:
McEwen Schmitt & Co. FOR PLAINTIFF
Vancouver
Caldwell & Co. FOR DEFENDANT
Vancouver