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.  Continue reading →

I have been involved in a number of cases in which motions have been brought to force an opposing lawyer to give up a file and get off the record for a variety of reasons, but most typically due to an alleged conflict of interest.  In my view, and as a general rule, the threshold to be met to obtain an Order declaring opposing counsel to be in conflict is not particularly high.  But what about judges?

In any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality.

A number of years ago, I defended a client in a small town in Ontario in a contract case.  The Plaintiff moved for judgment before one of only two judges regularly sitting in that jurisdiction.  For whatever reason, that judge obviously took a significant dislike to my client and not only did I lose, the judge went of his way to make a number of harsh and derogatory statements about him which I found to be uncalled for. 

I launched an appeal in that summary judgment, and I was successful.  However, not only did the Court of Appeal set aside the judgment, it also granted an Order declaring a bias on the part of that particular judge and requiring that the judge refrain from participating in any motions, pre-trial conferences or the trial itself as that matter progressed.  Continue reading →

A recent decision of the Ontario Court of Appeal provides interesting insights into the role of home inspectors and real estate agents where a specific issue is identified by a potential purchaser before the inspection takes place.

In Halliwell v. Lazarus and Coldwell Banker Terrequity Realty, the purchaser appealed from a trial decision in which liability had been apportioned among the home inspector at 50%, the real estate agent at 25% and the purchaser at 25% for contributory negligence. 

The problem had not been highlighted in the report in a sufficiently clear and precise manner.

On the facts of the case, the purchaser had made it clear to her agent and the home inspector (who had been recommended by the agent) that she was allergic to mould and required the house to be completely dry. 

The inspection was a condition of the offer so that the purchaser had the right to back out of the transaction if she was unhappy with the results of the home inspection.

The home inspector prepared a report that provided warning signs of moisture problems.  Continue reading →

A recent Ottawa decision, 2964376 Canada Inc. (Ameublement Prestige Furniture) v. Bisaillon, provides some interesting guidance concerning the right and the wrong way for aggrieved consumers to deal with retailers with whom they have complaints.

In this case, Mr. and Mrs. Bisaillon purchased a dining room set from the Plaintiff, Prestige Furniture. 

The public interest is not synonymous with what interests the public.

The dining room set arrived in a damaged state.  Prestige made some repairs and offered to have the manufacturer either repair it to the satisfaction of the Bisaillons or replace it.  The Bisaillons insisted on a refund.

They complained the Better Business Bureau, which mediated the matter and determined that Prestige had acted in good faith.

Still unhappy, the Bisaillons sued Prestige in Small Claims Court in 2010.  After a trial that took up 124 pages worth of transcript, the trial judge concluded that the Bisaillons had been wronged to some extent and awarded them $750 in damages. 

This action involved a separate dispute.  It appears that the adult daughter of the Bisaillons took upon herself to transmit an e-mail from her place of work, the Canadian Museum of Civilization Corporation, to 38 people referring to Prestige as an “untrustworthy company” and “deceitful” among other things.  She encouraged the recipients of the e-mail to pass it along to others.  Continue reading →

A decision of the Ontario Superior Court of Justice in the case of Siegel et al. v. Hibbert et al., released on May 7, 2012, contains some interesting observations on the role of investors in Ponzi schemes.

It does not lie in the mouth of one who makes a statement on which another relies to say that the other was careless in believing him.

The judge began his Reasons with the following comment:

“Greed is a vice that makes normally rational people act irrationally.  It plays exceedingly well into the old maxim ‘if it looks too good to be true, it usually is’.  This case proves that both theories are alive and well.”

In this case, a series of Plaintiffs invested various sums of money with one Marlon Gary Hibbert and his companies from about late 2006 through 2008.  All of them had heard of Hibbert generally by word of mouth, and all had approached him to ask that he invest their funds.

Hibbert traded in the currency exchange market without any training, experience or formally education in investments.  He was never registered with any regulatory body or government agency. 

He would explain to each Plaintiff that he traded in that market and that he guaranteed a 5% return per month or 8.5% per month if the funds were locked in for one year.  He also personally guaranteed all principal and interest payments.  Continue reading →

In the decision of the Ontario Superior Court of Justice (Commercial List) in Corona Packaging Inc. v. Singh et al., released on May 7, 2012, the Court was faced with the balancing of competing interests between companies battling an injunction motion.  The unusual difficulty in this case was the very real possibility that the party losing the injunction motion might well go right out of business.

In almost every case, the Court must make this extremely important decision (and one that has a good chance of ending the litigation one way or another) on something less than the complete factual record.

An injunction can be an extremely effective way of bringing a dispute to a rapid conclusion.  While interlocutory injunctions are typically sought at a very early stage in litigation, a significant number of disputes conclude by settlement or otherwise shortly after an injunction motion has been either won or lost.  Because such motions are typically argued without the full benefit of the exchange of all of the documents and evidence in the possession of each party, and the taking of evidence from witnesses as our trial procedures are designed to do, injunction motions are sometimes decided based on a cursory review of evidence and a great deal of gut feeling on the part of the motions court judge.  This can result in both significant risk and uncertainly where the stakes are high.

In this case, the Defendants were former employees of the Plaintiff, Corona Packaging Inc. Corona’s major customer was a New Jersey-based company, Guest Supply Inc., which provided 44% of Corona’s business.

The individual Defendants left their employment with Corona after five or six years.  Their employment contracts with Corona had included terms requiring them to maintain confidentiality of proprietary corporate information and an obligation not to compete with Corona after leaving its employ. 

Following their resignation from their employment with Corona, it appears that a newly-formed company named Aura Packaging Inc. managed to acquire the business of Guest.  Evidence was led as to the individual Defendants having removed confidential information from the electronic records of Corona, and also demonstrating that Aura appeared to be in possession of that information.  Continue reading →

The federal government recently announced the closing of Kingston Penitentiary, one of a number of prisons in the Kingston, Ontario area and likely Canada’s best known maximum security penitentiary. 

The news brought back memories of my one and only visit to that institution.  It took place about 20 years ago, but I will never forget some of its features. 

At that time, we were retained by the Ministry of Correctional Services to act in the defence of an action brought by an inmate at the penitentiary who was complaining of a variety of human rights violations. 

I went to Kingston for the examination for discovery of one of the assistant wardens.  When I met with him to prepare, he offered me a tour of the facility and a viewing of a prison cell similar to the one occupied by the Plaintiff, so that I could better understand his complaints.  Continue reading →