A Small Claims Court deputy judge should have recused himself from a case in which a paralegal who had donated to his charity campaign was representing one of the parties, a Divisional Court judge has found.
On Gilbert’s web site, paralegal Tami Cogan, who represented the respondent, had left a comment after making a donation: “A great effort for a great cause. Enjoy the ride Mr. Gilbert!”
The situation created a reasonable apprehension of bias, according to Justice Patrick Smith in his May 13 ruling in which he set aside Gilbert’s decision and ordered a new trial in the breach of contract case. “Deputy Judge Gilbert should have recused himself on his own volition under the circumstances,” wrote Smith.
Gilbertson Davis LLP partner Lee Akazaki says the case highlights the conflation of judicial and barrister roles that’s “bound to happen” with deputy judges who are lawyers paid per diem for their work on the bench.
“Deputy judge Robinson ought to have realized he was in a judicial office and there was a problem here, the problem that would have always been a problem in having solicited donations from the public for a charitable cause,” says Akazaki.
“As a lawyer, on the other hand, because he wouldn’t have had to resign from the law society to be a deputy judge, participating in charitable events and fundraisers is part of being a lawyer in the community.”
It’s surprising the issue hasn’t arisen before, he adds. “Quite often whenever you have reforms of institutions, especially when you’re trying to combine people with different roles, this is bound to happen. It’s actually surprising this has happened now instead of several years ago. Maybe it’s only because somebody has raised it [now]. It makes us realize that there’s a problem here.”
In his ruling, Smith said deputy judges of the Small Claims Court are subject to the same ethical standards as other members of the bench.
“They hear a large volume of cases and discharge an extremely important function within the legal system,” he wrote.
“Over the years, the monetary jurisdiction of the court has steadily increased in recognition of the important role the court plays. For a large portion of the public, the Small Claims Court is the court where litigation of their grievance takes place.”
But civil litigator Antonin Pribetic doesn’t necessarily accept that the deputy judge’s lack of disclosure about the charitable donation rises to a level of reasonable apprehension of bias, especially given the liberal approach the Supreme Court of Canada took in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) this month.
In the Yukon case, the top court found a trial judge’s mere involvement as governor of a philanthropic francophone community organization in Alberta didn’t, on its own, rise to a level of reasonable apprehension of bias against the government in a lawsuit over the diversion of funds from French-language education.
“While I agree that consideration of the trial judge’s current role as a governor of the organization was a valid part of the contextual bias inquiry in this case, I am not persuaded that his involvement with an organization whose functions are largely undefined on the evidence, can be said to rise to the level of a contributing factor such that the judge, as the Court of Appeal said, ‘should not have sat on [this case],’” wrote Justice Rosalie Abella.
Abella quoted the late American jurist Benjamin Cardozo, who said judges don’t stand on “chill and distant heights.”
“They should not and cannot be expected to leave their identities at the courtroom door,” wrote Abella.
The Canadian Judicial Council’s ethical guideline says judges shouldn’t solicit funds except from judicial colleagues or for appropriate judicial purposes. But Pribetic says it’s unlikely that soliciting funds for a charitable cause falls under that restriction. Even if it does, it’s likely only an issue when the charitable organization is one of the parties, according to Pribetic.
Based on the Supreme Court of Canada’s approach, soliciting charitable funds for a children’s hospital wouldn’t, in and of itself, be sufficient for a finding of reasonable apprehension of bias, he adds. “Would a fair-minded person realistically and practically arrive at the same conclusion? I don’t know if that’s necessarily the case,” says Pribetic, adding there must be further evidence of bias to support that conclusion.