August 29, 2012
On June 23, 2012, writing for the Toronto Sun, lawyer Alan Shanoff posed an interesting question: Who pays when judges screw up? In his words, litigation is unpredictable because, "A witness may fail to appear, or lie, or forget key evidence. The judge may choose not to believe a witness.It's also possible one lawyer may be out-gunned by the other side's lawyer." His follow up question: "But who should be bearing the risks where judges make inexcusable errors?"
What prompted the lawyer to ask these intriguing questions is the 19 day trial before Justice McIsaac. At the commencement of trial the judge was asked to recuse himself, or step aside, for another judge to sit on the trial. The request appeared to be reasonable. The judge and his wife owned waterfront property in the same township. The judge's wife was a real estate agent specializing in waterfront properties in the same township and two of her clients had a connection to the case, with one of them anticipated to be a witness at the trial. The two clients were daughters of a woman whose estate owned property abutting the property in dispute. The wife's clients had "an obvious interest in the litigation." It was obvious Justice McIsaac ought to have stepped side, but he didn't, and he put the parties through the wasted time and expense of a 19-day trial.
The liability of the trial judge for the massive legal costs was never addressed because because judges have judicial immunity and bear no liability for their judicial errors.
Litigants harmed by judicial errors should receive redress and compensation. According to Alan Shernoff, "Perhaps it's time for a Judicial Errors Compensation Board."
Perhaps it is also time to hold the parties who seek to profit from judicial errors accountable, because that would certainly discourage the current effort to "shop" for the Judge who is prepared to see it, not as the law prescribes, but as the "reasonable apprehension of bias" dictates.
Clearly, bias is the ultimate source of every judicial perversion, and it should be eliminated.
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, Ont., 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.
A corrupt Judge who sacrifices Justice for the sake of assisting his buddies does not deserve to serve on the bench. The bias of these people is so clear and tainted by the transparent lack of impartiality, it is simply no longer acceptable to allow them to continue to pervert the judicial process.
Next: How the judicial process is routinely corrupted.
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