Tuesday, June 12, 2012

The story of a judge who didn't recuse himself, should have ..... "Bench slapped!"

Good Day Readers:

We first encountered the name Ed Ratushny a University of Ottawa law professor specializing in judicial conduct and constitutional law back in early December of 2008. He was on one of the national television programs being interviewed about Mr. Harper's decision to porogue parliament.

What struck us was the comment, as we recall, a couple stupid decisions had been made. In short it was not necessary to porogue because there were a couple provisions in the constitution that could have been invoked that would have been far less disruptive then closing down the House of Commons and sending MPs home.

Fast forward to earlier this May when we thought we recognized him at the initial pre-Douglas Inquiry hearing held in Winnipeg - "we thought" because he reminds us a little of Inquiry Counsel George Macintosh. Mr. Ratushny is listed as a consultant to the Canadian Judicial Council in the Douglas case.

Quite a while ago someone at the Manitoba Law Courts, we can't remember who it matters not, mentioned about 50% of the judges suffered from "judgeitis." Pray tell we asked what is that? Judges whose power has gone to their heads.

Examining the case below could that have been an advanced case of judgeitis?

Clare L. Pieuk
Barrie judge erred in failing to recuse

Court of Appeal orders new trial in Georgian Bay property dispute

By Linda Nyguyen
June 15, 2012 Issue

The public’s perception of a judge’s impartiality must always be maintained for the administration of justice, even if there is no evidence of a bias or conflict of interest, according to a recent ruling by Ontario’s top court.

In its decision in Bailey v. Barbour, 2012 ONCA 325, the three-member Court of Appeal panel found that Justice John McIsaac erred when he did not recuse himself from hearing a years-long land claim centred on property in the Georgian Bay town of Tiny.

At the start of the 19-day proceeding, which ended in June, 2011, Justice McIsaac informed counsel that his wife was a real estate agent in Tiny and that two of her clients had a connection to the case. The dispute was between two neighbours, Angelina Bailey and Gerald Harry Barbour, over who had claim to a small, narrow access route between their two waterfront properties.

Justice McIsaac’s wife’s clients— two sisters — ​owned property adjacent to the disputed land, and one of them was an anticipated witness at the trial. He also disclosed that he had prior “understanding” of the land dispute because he and his wife had a cottage property there.

Yet, despite “spirited objections” from Bailey’s lawyer, Justice McIsaac found that his wife’s involvement in the case was only an “attenuated connection” and dismissed the application in brief reasons that said it did not meet the legal test for a reasonable apprehension of bias.

The appeal panel disagreed. It ordered a new trial under a different judge and that Bailey be paid $25,000 for the costs of this appeal, in its decision released May 16.

“Whenever a party takes the position that a reasonable apprehension of bias exists, the judge must weigh the submission carefully and contextually, taking account of all relevant circumstances,” said the decision by Justices Russell Juriansz, Harry Laforme and Edward Ducharme.

“The trial judge did not follow that course in this case. Had he done so, he would have given greater consideration to this wife’s involvement in the narrative, and he would not have concluded that the appellant’s claim for disqualification was based only on ‘a general sense of unease’ falling ‘well short of the threshold that justifies the order sought.’ ”

Instead, Justice McIsaac should’ve considered what an “informed, reasonable and right-minded person” might think about his ability to “concisely or subconsciously” fairly hear the case, the ruling said. “A reasonable person properly informed would only conclude that [the] connection to the property is deep and current and multilayered,” the appeal court wrote.

Ed Ratushny, a law professor at the University of Ottawa who specializes in judicial conduct, said there is a strong presumption of impartiality on behalf of a judge. When that is placed into question, it must be carefully considered. “A person wanting to get a judge recused must have a pretty strong case to do that,” he said. “Clearly this was a strong case.”

Generally, it is quite difficult to establish whether a judge actually possesses a bias or a conflict of interest. In this case, the panel specifically points out that this was not their suggestion, making it even more important that the perception of the judge’s impartiality be examined from an objective point of view.

“This has always been central to the rule. It’s hard to prove what is going on in someone’s mind, you need a smoking gun of some kind to show that the judge was actually biased,” Ratushny said. “Very seldom will you have the evidence. Instead, you have to use this objective test: What would a reasonable person think if that reasonable person was looking at this matter objectively?”

The balance must be between a proper analysis of the facts in the case and an effort to not open the flood gates for future litigants to “judge-shop,” he said.

In most trials where this issue is raised, a judge would generally recuse himself or herself “out of an abundance of caution.” These issues are also usually brought up at the earliest opportunity in an effort to avoid having to stop the trial midway or risk losing thousands of dollars in litigation, Ratushny added.

Robert Fenn of the Richmond Hill, Ontario, firm Rohmer and Fenn said his client, Angelina Bailey, was “pleased” with the panel’s decision. “The Court of Appeal ruling was well-reasoned and well thought out.”

A lawyer for the respondent, Gerald Harry Barbour, could not be reached.


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