Judge accused of bias rejects disbarred lawyer's motion to overturn dismissed appeal

Judge denied personal interest in subject-matter of dismissed appeal

Judge accused of bias rejects disbarred lawyer's motion to overturn dismissed appeal
Osgoode Hall, Toronto, Ontario

An Ontario Divisional Court judge has denied a motion filed by a disbarred lawyer, Jussi Justaa Kivisto, to overturn the dismissal of his appeal in which he alleged a reasonable apprehension of bias.

The appellant was licensed to practice law in Ontario, Florida and Illinois. Based on prior disciplinary proceedings before the Florida and Illinois courts, the Law Society of Ontario initiated disciplinary proceedings against him. All the proceedings alleged that he committed an act of misconduct by exploiting elderly people in connection with estates to which they had an interest.

The Florida Supreme Court found the appellant guilty of the misconduct and disbarred him. The Law Society of Ontario adopted the ruling and followed suit. Kivisto then appealed with the Divisional Court. The assigned judicial panel dismissed the appeal.

The appellant brought a motion to overturn the decision dismissing the appeal. He alleged that the judicial panel, particularly Justice David Corbett, had exhibited bias which led to his dismissal.

In his latest decision, Justice Corbett held that the appellant had not made out his claim of reasonable apprehension of bias. Justice Corbett denied exhibiting bias in his refusal of the appellant’s request to file a long factum in December 2019. Justice Corbett added that as an administrative judge, he would rarely grant factums longer than thirty pages in length. He stressed that his ruling denying the appellant’s request would not lead a reasonable person to conclude that he had made up his mind about the merits of the appeal.

The appellant contended that there was reasonable apprehension of bias in the way the appeal hearing was scheduled. Justice Corbett disagreed. When the hearing date for the appeal was cancelled, due to a conflict of interest by the head of the original judicial panel, there was no expected availability for hearing before their panel, Justice Corbett explained. He added that no hearings were adjourned or cancelled for the purpose of making room on the panel’s schedule to hear the appeal.

The appellant further alleged that the transcript disclosed that the decision dismissing the appeal had been made well before the panel was seated.

There was nothing in the transcript to support such an allegation, Justice Corbett said. He noted that the oral reasons for the dismissal of the appeal clearly showed that the judicial panel heard and considered the appellant’s oral arguments given that a large portion of the oral reasons were structured around those oral arguments.

Justice Corbett further ruled that his refusal to accept the appellant’s arguments did not constitute reasonable apprehension of bias. It was neither necessary nor appropriate to revisit the decision as the oral reasons essentially explained why the appeal was dismissed, Justice Corbett said.

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