Judges and the Reasonable Apprehension of Bias, Revisited

In my last post, I made a comment about a judge having failed to recuse himself upon the request of counsel at the beginning of a trial on the grounds of reasonable apprehension of bias arising out of a connection between the trial judge’s wife and certain individuals with an interest in the outcome of the case. 

I also referred to an experience which I had had several years earlier in which I was able to have a summary judgment overturned on the basis of bias as evidenced by remarks made by a motions court judge. 

In a recent Court of Appeal decision, Lloyd v. Bush et al., the Court dealt with another situation in which a judge betrayed an apparent bias during the course of a trial, resulting in the decision being set aside and a new trial being ordered.  The circumstances were so unusual (and hopefully interesting) as to bear close examination.

As I had indicated in my last post, the rather high threshold established by the cases for the overturning of a decision on the basis of a reasonable apprehension of bias can be met without a finding of actual bias.  It is sufficient to demonstrate that on an objective basis, a reasonable person with knowledge of all of the facts would conclude that it is more likely than not that a judge would not decide fairly.  The appearance of potential bias is sufficient.

Lloyd v. Bush was a case in which bias was clearly demonstrated by the trial judge’s own statements and actions in several respects. 

The case itself involved an automobile accident.  Mrs. Lloyd was injured in a collision with a truck driven by the Defendant.  She and her husband commenced an action for damages against the Defendant driver as well as the Town of Greater Napanee and the County of Lennox.  At the start of the trial, the action against the driver was settled.  The trial continued for 19 days over a two-month period against the Town and the County after which the action was dismissed with a costs award against the Lloyds of over $400,000.  The costs award was higher than normal because the judge found that the Lloyds had alleged fraud on the part of the Town, but had not proven any fraud.  The Lloyds appealed on both liability and costs and argued among other things that the trial judge had exhibited bias. 

The first complaint about the trial judge’s conduct that was addressed by the Court of Appeal related to the conclusion reached by the trial judge that counsel for the Lloyds had improperly raised an allegation of fraud against the Town.  

The Lloyds called as an expert witness a professional engineer, who testified about practices and procedures of winter maintenance for municipal roads inOntario.

He testified concerning the sand-salt mixture allegedly applied to the road by the Town just prior to the accident.  He had reviewed the Town’s records and notes that indicated that sand and salt had been applied, and pointed out that the police photographs did not show any evidence that such a mixture had been applied.  In response to questions by the trial judge, he testified that if the road had been ploughed, sanded and salted as indicated by the Town records, he would have expected the road to have been “down to bare pavement”.  He indicated that he could not reconcile the notes with what he saw in the photographs, which indicated that the road had been snow-covered.  He agreed with the observation of the trial judge that the implication of his evidence was that the Town’s notes were not correct. 

After finishing with his questions of the witness, the judge turned to counsel for the Lloyds and the following exchange took place (with emphasis added by the Court of Appeal):

“THE COURT:        So I understand.  Counsel, are you – do you agree with this man’s comments because it goes to costs ultimately if you’re alleging a fraud and costs are at the highest level if you can’t sustain that.

MR. BALDWIN:     Your Honour, I make no allegation of fraud in this law suit.

THE COURT:        Well what are we listening to then?

MR. BALDWIN:     Your Honour, I’m just listening to the evidence.  That’s all that –

THE COURT: Well excuse me.  If you’d like to step out just for a moment sir.  You can put him either outside or in the jury room.


THE COURT:        You understand the implication here, don’t you?

MR. BALDWIN:     Apparently not, Your Honour.

THE COURT:        Well the implication is that these people – whoever wrote these notes, aren’t telling the truth because they don’t – because he says otherwise this wouldn’t have happened.

MR. BALDWIN:     Your Honour, we only have the evidence and we haven’t heard…

THE COURT:        No. No Counsel.  We have his evidence where he implicates that there was a fraud involved here.  Do you understand me now?

MR. BALDWIN:     I understand Your Honour’s comments.

THE COURT:        Alright.

MR. BALDWIN:     I make no such allegations.  We’re having a trial.  I haven’t heard from the municipality yet.  I haven’t heard from the municipal witnesses.

THE COURT:        You certainly didn’t plead them.  All I’m saying is…

MR. BALDWIN:     I didn’t plead which Your Honour?

THE COURT:        You didn’t plead fraud in your…

MR. BALDWIN:     No.  I pleaded improper and inadequate maintenance.

THE COURT:        Alright.  But do you understand what he’s saying here?

MR. BALDWIN:     I understand Your Honour’s comments.

THE COURT:        He’s saying – do you understand his comments and the implication of his comments and do you understand what that means?

MR. BALDWIN:     Well Your Honour one of the things we don’t know and the witness isn’t here to – but one of the things we don’t know is we don’t even know the application rate of the materials on the road.

THE COURT:        That may be fine and dandy.  All I’m saying is based on what we know now and based on what he has said as your expert…

MR. BALDWIN:     Yes.

THE COURT:        Are you agreeing with his comments as counsel?

MR. BALDWIN:     I agree with his evidence Your Honour.  It’s the evidence that we lead (sic).

THE COURT:        Are you agreeing with his comments as it relates to the implication of fraud?

MR. BALDWIN:     He didn’t make that comment Your Honour.

THE COURT:        Excuse me.  I just said, I find that he is making that implication.

MR. BALDWIN:     Your Honour, I’m not…

THE COURT:        What about that don’t you understand?”

 The exchange with the trial judge continued further and ended with the following exchange:

“MR. BALDWIN:      I understand his evidence to be that if there was an application of salt and or sand mixed, at an application rate that might have been 570 kilograms per kilometre and it went through there five times that morning, that there’s not consistent with the photograph.  That’s what I understand the evidence to be.

THE COURT:         Alright.  You’re okay with that then, alright?

MR. BALDWIN:      Well Your Honour, that’s our evidence.

THE COURT:          No, no.  I just – I don’t like the kind of implications in a trial where they come – you know – where they say, the evidence is cooked on the other side.  I just don’t like that.

MR. BALDWIN:      Your Honour, I’ve never…

THE COURT:         If that’s the case…

MR. BALDWIN:      …I haven’t said that.  All I do is I lead the evidence Your Honour.

THE COURT:         You lead the evidence and I’m the Trier of Fact.

MR. BALDWIN:      Yes.

THE COURT:         And I came to the conclusion that there was an implication there and you’re not listening to that, obviously and I wondered whether or not you wanted…

MR. BALDWIN:      I’m trying to understand Your Honour.

THE COURT:         …I wanted to know whether you wanted to address it now or just let the witness go and that’s fine.

MR. BALDWIN:      I’m not sure how to address it Your Honour.

THE COURT:         Okay, fair enough.  We can address it later, if necessary.  That’s what costs are about.  That’s all I’m trying to imply, alright?”

Later in the trial, a Town witness testified and the lawyer for the Lloyds objected to a question asked of him by the Town’s lawyer on the basis that it raised an issue that was not covered by the pleadings.  The judge responded:

“There was an allegation that wasn’t in your pleadings that was brought out by one of your experts, that there was some type of civil fraud involved with not putting sand on the road.”

When the lawyer for the Lloyds responded denying that there had been an allegation of fraud, the following exchange took place:

“THE COURT:          You weren’t listening to your expert then, were you, that day, when he said that they must have cooked their books.  That’s what he said. [Emphasis added.]

MR. BALDWIN:      No, Your Honour, I don’t agree that that’s what the witness said.  [Emphasis added.]

THE COURT:          That was the implication of what he said, and that’s what I took it, and I told you about that, that day, sir.  So I’m going to hear this evidence.  It’s something that, as I indicated to you at that time, we’ll address with costs if it’s not borne out.”

In his reasons for judgment, the trial judge listed a number of reasons why, having dismissed the action, a more significant award of costs should be made against the Lloyds than what otherwise would be the case.  Included in those Reasons was the following:

“Although not pleaded by the plaintiffs, there was an innuendo or allegation of fraud by the plaintiffs during the course of the trial namely that the snow plow operators had fabricated their evidence.  This allegation was never fully explained or retracted and was not borne out by the evidence at trial.”

He went on to say:

“Regarding item 3, the allegation of fraud, I was concerned when confronted by it during the course of the trial as the plaintiffs and their counsel were clearly aware of this allegation of fraud prior to the commencement of trial and had not moved to amend their Statement of Claim.  This resulted in both the court and the defendants being “blindsided”.  At that time, I had a discussion with counsel that were the plaintiffs to pursue such a claim without success, the matter of costs may have an impact despite success otherwise.”

Speaking for the Court of Appeal, Mr. Justice Armstrong found that the trial judge had erred in reaching the conclusion that the witness’ testimony had amounted to an allegation of fraud that had not been pleaded.  He could not understand any basis on which the trial judge could have made a statement about the Lloyds and their lawyer being aware of an allegation of fraud before the trial started, or on what basis the trial judge indicated that both the Court and Defendants had been blindsided.  He ruled that there had been no basis for the judge to suggest that the Lloyds were alleging fraud or that the Town had cooked its books. 

As Justice Armstrong said:

“Corporate records, governmental records, medical records and any number of other institutional records are called into question every day in courtrooms across the country without raising an issue or inference of fraud against the particular institution.  If the trial judge’s approach is correct, every time a particular expert testified that the recorded notes do not reflect what actually happened, it would be tantamount to an allegation of fraud against the author of the notes.  What was raised here by the expert witness, Bender, were everyday issues of reliability and credibility, not fraud.  When a witness, on behalf of a corporation, government, hospital or some other institution, makes a mistake in preparing a record, it does not follow that he or she is lying or that the particular organization has “cooked the books”.”

He went on to observe that there are many reasons why the Town’s records could have been inaccurate starting with a simple mistake in what the plough operators were writing down.  In any event, the lawyer for the Lloyds made it clear that fraud was not being alleged and according to Mr. Justice Armstrong, “that should have been the end of it”.

He found that these repeated interjections clearly suggested that the judge was of the view that the Lloyds were asserting a position that could not possibly be true.  As a result, their case was doomed to failure.  In the Court’s view, a fully informed reasonable observer would conclude at this early point in the trial that the trial judge seemed to have closed his mind to the central issue in the case and accordingly, would not decide fairly.

The second issue had to do with the judge’s comments on the credibility of Mrs. Lloyd.

When Mrs. Lloyd testified, her lawyer reviewed her educational background with her.  She had filed a curriculum vitae indicating that the she had received a bachelor’s degree from the University of Ottawa in 2000.  When she testified, she indicated that she had attended that school for three years and was one full course short of qualifying for a bachelor’s degree.

Mrs. Lloyd was not cross-examined on this discrepancy or asked to explain why the curriculum vitae indicated that she had obtained the degree. 

Her husband testified right after her.  At the end of his evidence, the judge asked him about the curriculum vitae and had him clarify that notwithstanding what it said, his wife did not actually have a bachelor’s degree.  The following exchange then took place:

“THE COURT:          And did she use that CV to get the job at Corbyville Detention Centre?

A.                                 I would presume so.

THE COURT:         You understand where I’m going?

A.                                 No sir.

THE COURT:          Well there may have been other people out there with a Bachelor of Social Sciences and who didn’t get the job because she indicated that she had a Bachelor of Social Sciences.

A.                                 During the interview she told the interviewer that she had not completed it.

THE COURT:          Were you at the interview?

A.                                 No.

THE COURT:          All right.  That’s what she told you.

A.                                 Correct.”

On re-examination, Mr. Lloyd made it clear that her employer knew full well that she had not completed the requirements for graduation and the fact that the employer was pressing her to finish her degree.  

The evidence of the Lloyds was clear.  There was no cross-examination on the point by the lawyer for the Defendants.  Nevertheless, on a subsequent occasion during the trial, the trial judge made the following statement:

“… I reviewed my notebooks over the break and I can tell you that there’s a couple of things that may be of significance to you in your ongoing settlement discussions.  Firstly, no matter how I deal with the issue of liability in, with respect to damages I have to assess damages.  And I made a credibility issue with respect to the plaintiffs on a matter of curriculum vitae that was falsified and it may affect damages. I haven’t decided that yet.  I haven’t decided this case yet but I can tell you that that may or may not be of interest to you at this stage.”

Mr. Justice Armstrong commented on this statement in the following words:

“On what basis the trial judge thought it was appropriate to make the above statement before the conclusion of the trial, it is impossible to fathom.  There is nothing in the transcript to indicate what prompted this statement.  It appears to come out of the blue.  Neither counsel for the appellants nor counsel for the respondents were able to provide any explanation for it.“

Mr. Justice Armstrong indicated that he was very concerned about the trial judge having telegraphed that he had apparently made an adverse finding of credibility against the Plaintiffs before the trial was even over.  He felt that the trial judge’s comment about his not having decided that yet was not an adequate answer to that concern.

He was concerned even more about the fact that it was the trial judge and not the lawyer for the Defendants who had raised the issue of the “falsification” of the curriculum vitae.

In his ruling against the Lloyds, the trial judge referred to the “falsehood about the degree” and characterized this as a “credibility flaw”, being one of the factors that he considered in weighing the evidence of the Lloyds. 

Mr. Justice Armstrong concluded that the trial judge’s references in open court during the trial as to the negative credibility of Mrs. Lloyd and his interjection with respect to the supposed allegation of fraud, raised a reasonable apprehension of bias.  The Court of Appeal allowed the appeal, set aside the judgment and awarded a new trial. 

As for costs, the Court of Appeal made what I would consider to be the sensible decision to have each party be responsible for their own trial costs.  The Lloyds were awarded costs of the appeal.

Once again, these parties are faced with the prospect of another lengthy, expensive trial because of the actions of a trial judge.  One has to wonder whether or not at some point, the Minister of Justice might at least begin to consider the possibility of compensation for parties who are placed in that position.  Litigation is expensive enough without parties being put to the expense of a repeat performance for reasons beyond their control. 

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