Ontario Court of Appeal sees no bias in not adjourning trial to accommodate sick counsel
In a proceeding for damages based on personal injury and Charter claims, the Ontario Court of Appeal found no reasonable apprehension of bias or unfairness in the trial, based on fresh evidence admitted on consent and other evidence.
In 2012, the appellant in Leendertse v. Ontario, 2026 ONCA 629, was riding his bike when the mirror of a police vehicle struck him.
The appellant claimed damages based on negligence for personal injuries due to the collision, as well as Charter damages for detention-related breaches during the police investigation immediately after the incident.
Given the appellant’s lawyer’s illness, likely due to the COVID-19 virus, the court adjourned the two-week trial, set to begin on Feb. 10, 2020, until Feb. 18, 2020. The COVID lockdown then delayed the trial’s continuation.
Requesting a mistrial, the appellant alleged that the delay and his lawyer’s ill health during the Feb. 18, 2020, trial week hindered his proper and fair representation.
The court denied the appellant’s mistrial motion, completed the trial in 2022, and ultimately dismissed the action.
The appellant appealed against the Nov. 21, 2022, judgment of Justice Kelly Gorman of the Ontario Superior Court of Justice. The appellant asserted that the trial judge erroneously found no detention during the post-accident investigation.
The appellant asked for a new trial and $25,000 in Charter damages for breaches relating to his detention.
The Ontario Court of Appeal dismissed the appeal and ordered the appellant to pay the respondent costs of $30,000, including disbursements and taxes.
First, the Ontario Court of Appeal rejected the appellant’s argument that a reasonable apprehension of bias arose from a Feb. 11, 2020, ex parte meeting between the trial judge and the respondent’s counsel.
Based on the record, the appeal court was unsure whether the trial judge knew during the Feb. 11 appearance that the appellant’s lawyer was sending an agent, who was likely on her way, to address the matter. However, the appeal court found this uncertainty immaterial.
In the circumstances, the appeal court deemed it a foregone conclusion that the matter would not be moving forward that day. Except as a matter of courtesy, the appeal court considered it unnecessary for an agent to attend to inform the court of this.
The appeal court pointed to arrangements for a later conference call for the appellant’s counsel to discuss the case progress.
Second, the appeal court disagreed with the appellant’s claim of a reasonable apprehension of bias resulting from the trial judge’s failure to adjourn the trial to a future sitting to accommodate his lawyer’s illness during the Feb. 12, 2020, conference call.
The appeal court saw no basis to determine that the trial judge acted unfairly in addressing the appellant’s lawyer’s illness. The appeal court noted that:
While other judges might have further adjourned the matter because the appellant’s lawyer still looked ill and would need accommodation during the hearing due to her persisting illness, the appeal court stressed that the decision of whether to proceed was a matter of judicial discretion.
The appeal court emphasized that the matter had reached trial after around eight years and had been the sole one on the trial list.
Next, the Ontario Court of Appeal rejected the appellant’s argument that the trial was unfair due to the trial judge’s decision to proceed during the week of Feb. 18, 2020, while his lawyer remained ill, instead of again adjourning the matter.
The appeal court noted that:
The Ontario Court of Appeal acknowledged that the trial judge arguably should have determined that police detained the appellant when telling him that leaving during the investigation could lead to an arrest.
The appeal court recognized that this communication might amount to a police officer’s restrictive demand or direction that the appellant had a legal obligation to follow under s. 200 of Ontario’s Highway Traffic Act, 1990.
However, the appeal court ruled that resolving this detention issue on appeal would not affect the outcome or serve the interests of justice because the parties had not fully argued the detention theory before it.
In the circumstances, even if police had detained the appellant, the appeal court said it would not have awarded Charter damage.
Here are some other recent Court of Appeal for Ontario decisions arising from vehicle-related injuries.
On June 18, the appeal court dismissed a woman’s action for damages for her post-concussion syndrome arising from a motor vehicle accident upon determining that she commenced her claim beyond the relevant limitation period.
In proceedings arising from injuries sustained in a motor vehicle collision, the appeal court issued a May 14 decision setting aside a Superior Court judge’s order requiring Tribunals Ontario to produce hundreds of internal records of the Licence Appeal Tribunal.
In a case arising from a car accident, the appeal court made a May 11 decision upholding a judge’s refusal to summarily dismiss a claim for damages for injuries against a nightclub operator and her summary judgment in favour of three others.
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