Date: 20041214
Docket: T-1602-95
Citation: 2004 FC 1738
BETWEEN:
JOSE PEREIRA E HIJOS, S.A.
and ENRIQUE DAVILA GONZALEZ
Plaintiffs
and
THE ATTORNEY GENERAL OF CANADA
Defendant
[1] These reasons follow the hearing of a motion, dated the 1st of December, filed the 9th of December, and heard the 13th of December, 2004, by which the Plaintiffs seek an order that I recuse myself from further participation on this file. The grounds for the motion are stated in the Notice of Motion itself to be the following:
... that given Justice Gibson's 29 year [sic] employment by the Defendant, from 1965 to 1981 with the Federal Department of Justice, from 1982 to 1986 as Deputy Solicitor General of Canada, and 1988 to 1993 as Chair of the National Parole Board, and his consequent duty of loyalty throughout those years to the Defendant, that these circumstances would give rise to a reasonable fairminded and informed person of a reasoned suspicion of lack of impartiality.
[2] The action that is the subject matter of this file was commenced by Statement of Claim filed the 18th of October, 1995. In the latest iteration of the Statement of Claim, the Plaintiffs seek the following relief: special damages for the detention of the Plaintiffs' ship "ESTAI" from the 9th of March to the 15th of March, 1995, together with related special damages; general damages for "...trespass on the high seas, endangerment on the high seas, unlawful seizure, unlawful arrest of the ... "ESTAI", unlawful arrest of the Plaintiff Captain Davila, negligence, unlawful detention and interference with the Plaintiff's servants and agents, namely the crew of the Motor Vessel "ESTAI", failure to protect Captain Davila while in custody, interference with the Charter right to retain and instruct Counsel without delay (Section 10(b)) and also interference with Charter rights under Section 15, eviction of crew from the "ESTAI" and unlawful discharge of cargo"; punitive damages; aggravated damages; and interest and costs on an elevated scale. The trial of the action is scheduled to commence before me at St. John's, Newfoundland on the 10th of January, 2005. It is estimated that the trial will continue for forty-eight (48) days.
[3] In support of the motion, the Plaintiffs filed the affidavit of José Enrique Pereira Molares of Vigo, Spain. The Plaintiffs' affiant attests that he has, at all material times, been the manager of the corporate Plaintiff and thus has "... full knowledge of the matters ... deposed except where such matters are expressed to be based upon knowledge, information and belief."
[4] The Plaintiffs' affiant quotes extensively in his affidavit from the latest version of the Plaintiffs' Statement of Claim. He attests to certain of the issues that will arise at trial and turns to my employment history with the Government of Canada as previously briefly summarized in these reasons. While that employment history is alleged to have extended over twenty-nine (29) years, in fact I was employed in the federal public service, as broadly defined, from the 1st of April, 1965 until the 31st of March, 1993, that is to say, for twenty-eight (28) years. I took office as a member of the then Federal Court - Trial Division, effective the 1st of April 1993.
[5] The Plaintiffs' deponent completes his review of my public service career with the following attestation:
12. The Judge assigned to try this case between the Plaintiffs and the Defendant was employed by the Defendant for most of his career, for 29 [sic] years. Your deponent by virtue of the issues raised as hereinbefore set forth holds a perception that Justice Gibson, a long time employee of the Defendant, cannot be impartial.
It is worthy of note that the events giving rise to this litigation occurred early in the month of March, 1995, almost two years after I ceased to be employed in the federal public service.
[6] The critical paragraphs of the Plaintiffs' deponent's affidavit are in the following terms:
15. Given that Justice Gibson was employed throughout most of his career, for 29 [sic] years, from 1965 to 1993 by the Defendant, I have an apprehension of bias, that is to say I have a perception that Justice Gibson with 29 [sic] years of service for the Defendant will have a leaning or inclination unconscious though it may be that favors the Defendant.
16. I am a reasonable, fair minded and informed person, and I have a reasoned suspicion, reasonable apprehension, that Justice Gibson is not impartial and cannot be impartial given his 29 [sic] years of service with the Defendant prior to his appointment to the bench. I have a reasonable apprehension, a reasoned suspicion that Justice Gibson by virtue of his long association with the Defendant and his lengthy duty of loyalty to the Defendant is not and cannot be impartial concerning all of the issues raised by the pleadings and concerning the further issue of the admissibility of the report hereinbefore referred to.
17. I further state that without question a reasonable fairminded and informed person in this jurisdiction (Vigo, Spain) would have a reasoned suspicion that a long term employee of the Defendant would not be impartial and ought not sit in judgment where his long term employer is a party.
18. I further state that in my judgment a reasonable fairminded and informed person in Canada would have a similar reasoned suspicion and would object if his or her action in a Spanish court against the Government of Spain were to be tried before a Justice who had been a 29 [sic] year employee of the Government of Spain.
19. I further state that a reasonable fairminded person in Canada suing a Government in a Canadian court would object if the Judge hearing the case had been employed by that same Government for 29 [sic] years prior to his or her appointment as a Judge.
[7] Counsel for the Defendant, Respondent, took extensive objection to the Plaintiffs' affidavit urging that it consists "...primarily of personal opinion and legal argument...", is "...argumentative and also irrelevant...", is in part "...superfluous..." and is to some extent "...premature and speculative". At the opening of the hearing on the motion, I indicated that I would not strike the affidavit or any of the paragraphs thereof, but would give to it and to them such weight as I consider the affidavit and various paragraphs thereof warrant. I determine to give no weight to paragraphs 18 and 19 of the Plaintiffs' affidavit quoted above as the Plaintiffs' affiant has provided no basis whatsoever for the judgment and opinion expressed in those paragraphs.
[8] I am satisfied that the starting point for consideration of a motion such as this is to be found in the minority reasons of Justice de Granpré in Committee for Justice and Liberty v. Canada (National Energy Board)[1] where he wrote at page 394:
...the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. ...
Against the foregoing, and with great respect, I find it difficult to conclude that the Plaintiffs' affiant could be considered to be a person who has properly informed himself on the question. I can only ascertain from his affidavit, on which he was not cross-examined, a most superficial knowledge on his part of my career in the federal public service, and no knowledge of my subsequent and almost twelve (12) year career on the bench. Nor can I conclude that he could be considered to have viewed the matter "...realistically and practically...", given his direct interest in the litigation, or that he could be considered to have "...thought the matter through...", given the fact that he does not allege to have any experience of the environment in Canada, particularly the judicial environment.
[9] In R. v. S. (R.D.)[2], Justice Cory wrote at paragraph 113:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. ... Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly. [citation omitted]
[10] I find no basis whatsoever to conclude on the evidence and representations before me that the Plaintiffs and their counsel, in raising the issue of reasonable apprehension of bias on my part, undertook the step "lightly". Counsel certainly fearlessly raised the allegation as he was entitled to do.
[11] Justice Cory continued, in paragraph 114 of the reasons in R. v. S. (R.D.):
The onus of demonstrating bias lies with the person who is alleging its existence: ... Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case. [citation omitted]
[12] At paragraphs 116 to 120, Justice Cory wrote:
Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfilment of a life's dreams. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are common to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them. Their rate of success in this difficult endeavour is high.
Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. ... This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with "cogent evidence" that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias. ... The presumption of judicial integrity can never relieve a judge from the sworn duty to be impartial.
It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct.
The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.
True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.
. . .
It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. ...
Regardless of their background, gender, ethnic origin or race, all judges owe a fundamental duty to the community to render impartial decisions and to appear impartial. It follows that judges must strive to ensure that no word or action during the course of the trial or in delivering judgment might leave the reasonable, informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations. [citations and some texts omitted]
[13] To the reference to "...background, gender, ethnic origin or race, ..." in the last paragraph of the foregoing quotation, on the facts of this matter, I would particularly add "previous work or professional experience".
[14] From the foregoing long but very apt quotation, I draw the following principles: first, each allegation of reasonable apprehension of bias must be determined on its own facts; second, where an allegation of reasonable apprehension of bias arises, the onus lies on the person alleging the reasonable apprehension; and finally, against a high threshold and a presumption that judges will carry out their oath of office, that presumption can only be displaced with "cogent evidence". Further, and in my view most appropriately, the quotation emphasizes at length the responsibility of each judge to conduct himself or herself in a manner consistent with the oath of office that he or she has sworn or affirmed.
[15] In addition to the foregoing authorities and other authorities cited in the parties records before me, the following authorities were emphasized during oral submissions: Wewaykum Indian Band v. Canada[3], R. v. Melnichuk[4], Barrett v. Glynn[5] and The Quebec Code of Civil Procedure[6], the last particularly at Chapter V, Recusation, at subsection 234(3) and section 236.
[16] I am satisfied that the first two authorities support the conclusion that I will reach on this motion. The decision of the Newfoundland Court of Appeal is distinguishable on the facts. The references from The Quebec Code of Civil Procedure are simply not directly applicable.[7]
[17] Finally, I refer to reasons of my former colleague, Justice Jean-Eudes Dubé, who, prior to his appointment to the Federal Court, Trial Division in 1975, was an elected member of the House of Commons of Canada and a Minister in the Executive Government of Canada. In Fogal v. Canada[8], where he was writing in respect of a motion such as this, Justice Dubé wrote at paragraph 10:
Judges do not descend from heaven. They come from various fields of activities. Some of us are former academics, others were in the public service, others practiced law in small towns or large firms. And some of us were in politics. The variety of our individual careers is a rich source of knowledge and experience for the courts. Once we took our oath of office, we divorced ourselves from our past and dedicated ourselves to our new vocation. Our duty is to render justice without fear or favours.
[18] I adopt Justice Dubé's words as my own. When I joined this Court, I took an oath of office in which I promised and swore:
...that I will duly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a Judge of the Federal Court, Trial Division.
[19] In taking that oath, without purporting to divorce myself from my past in the sense of erasing my experience in the public service from my memory, I undertook to deport myself in a manner consistent with my judicial duties, free of favouritism or preference. I am satisfied that, to this point, well over eleven (11) years later, I have fulfilled that responsibility. I have no intention now to depart from the impartiality that I have faithfully attempted to demonstrate in the conduct of my duties.
[20] This motion will be dismissed.
[21] The Applicants do not seek costs either in the motion under consideration or in their written representations. By contrast, the Defendant seeks dismissal of the motion with costs. Costs of the motion will be in the cause.
_________________________________
J.F.C.
Ottawa, Ontario
December 14, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1602-95
STYLE OF CAUSE: JOSE PEREIRA E HJIJOS, S.A.
and ENRIQUE DAVILA GONZALEZ
v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario - by video conference
Counsel appearing at Halifax, Nova Scotia
and St. John's, Newfoundland
DATE OF HEARING: December 13, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Gibson
DATED: December 14, 2004
APPEARANCES:
Mr. John Sinnott, Q.C. for the Plaintiffs
Mr. Andrew Fitzgerald
Mr. Michael Donovan for the Defendant
Ms. Kathleen McManus
SOLICITORS OF RECORD:
Lewis, Sinnott, Shortall for the Plaintiffs
Barristers, Solicitors, Notaries
St. John's NF A1C 5L7
Morris A. Rosenberg for the Defendant
Deputy Attorney General of Canada
Halifax, NS B3J 1P3
[1] [1978] 1 S.C.R. 369.
[2] [1997] 3 S.C.R. 484.
[3] [2003] 2 S.C.R. 259.
[4] [2004] B.C.J. No. 1268 (B.C.C.A.).
[5] [2001] N.J. No. 344 (NFCA).
[6] R.S.Q., c. C-25.
[7] See: Ethical Principles for Judges, Canadian Judicial Council, Catalogue Number JU11-4/2004E-PDF where the following appears under the heading E. Conflicts of Interest at paragraph E.8, page 46:
While these approaches [those in The Quebec Code of Civil Procedure] introduce much needed clarity, it may come at the expense of attention to the general principle that a judge ... should disqualify him or herself if aware of any interest or relationship which, to a reasonable, fair minded and informed person would give rise to reasoned suspicion of lack of impartiality. For the purposes of national principles of judicial ethics for Canada, the temptation to become more specific than this should be avoided.
[8] [1999] F.C.J. No. 129 (not cited before me).