Applicant brought application for declaration that certain moneys that she had advanced to daughter and respondent, who was daughter’s common law husband, towards purchase of house were not gift, but loan that constituted unregistered mortgage on home. Although application was supported by one document, meaning and intent of that document was in dispute, as were the facts that had to be found in order to determine whether declaration should be granted. Trial judge dismissed application. Trial judge accepted respondent’s contention that loan had been gift, which was made in return for free room and board. Daughter and respondent were police officer. Trial judge expressed concern about making finding that police officer was untruthful. Applicant appealed on basis that application judge erred in failing to find that trial was necessary in circumstances, and on basis that impugned comments by application judge created reasonable apprehension of bias. Appeal allowed. Applying test for reasonable apprehension of bias, it was clear that reasonable observer would conclude that it was more likely than not that, consciously or unconsciously, application judge would not impartially decide whom to believe. Application judge’s comments indicated partiality to evidence given by police officers. Even though he gave other reasons for deciding whose evidence he believed, those reasons were tainted by comments. Decision was set aside and new trial ordered.
Laver v. Swrjeski
(Apr. 17, 2014, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and Gloria Epstein J.A., File No. C57052) 240 A.C.W.S. (3d) 2.