Case: Walker v. Kierans, 2024 BCCA 118 (CanLII); Walker v. Kierans, 2024 BCCA 119 (CanLII)

Keywords: recusal; reasonable apprehension of bias; Patient’s Property Act, R.S.B.C. 1996, c. 349

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Synopsis:

The Appellant seeks to be appointed “committee of the person” of her brother, pursuant to the Patient’s Property Act, R.S.B.C. 1996, c. 349. The Application Judge, Basran J., appoints the Appellant’s sister instead. (BCCA 118 at para. 4).

The Appellant appeals. At the outset of the hearing, she asks that Skolrood and Voith JJ.A. recuse themselves. The reason: the Appellant has previously appeared before them in connection with earlier matters, including unrelated litigation involving the Law Society of British Columbia (BCCA 118 at paras. 5-8; BCCA 119 at para. 4).

In separate reasons, both Skolrood and Voith JJ.A. deny the Appellant’s request. (BCCA 118 at paras. 2-3; BCCA 119 at paras. 1-2).

Importance:

Both judges referred to the recent decision of Pereira v. Dexterra Group Inc., 2023 BCCA 201, in which Griffin J.A. provides “a thorough and helpful summary of the principles governing an application for recusal based upon actual or apprehended bias”. (BCCA 118 at para. 9; BCCA 119 at para. 5).

There is a high burden to prove a reasonable apprehension of bias exists – a strong presumption of judicial impartiality is not easily displaced, without “serious grounds on which to base the apprehension”. (Taylor Ventures Ltd. (Trustee of) v. Taylor, 2005 BCCA 350 at para. 7). As originally stated by de Grandpré J. dissenting in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC) at p. 394, the test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” (BCCA 118 at para. 9, as quoted in Pereira at para. 12).

As more recently discussed by the Supreme Court of Canada in Yukon Francophone School Board, Education Area No. 23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII) at para. 26, the test is “inherently contextual and fact-specific”. (See, also, Taylor at para. 7).

In the specific circumstances of a judge hearing multiple matters involving the same party, the Court of Appeal has repeatedly stated that “[t]he mere fact that a judge has heard another proceeding involving the same party does not displace the presumption of judicial impartiality”. (See Pereira at para. 14; Jean Louis v. Jean Louis, 2021 BCCA 481 (CanLII) at para. 14).

For Skolrood J.A., while the Appellant’s “apparent discomfort is unfortunate”, in the absence of “clear grounds for recusal” (e.g., evidence or “any cogent argument” that Skolrood J.A. could not hear and determine the appeal fairly), “a litigant’s preferences about the judge or judges who hear their case cannot be determinative”. (BCCA 118 at para. 14).

For Voith J.A., “other practical realities” were relevant here, including that it is “almost inevitable” for a litigant who repeatedly appears in court, in one or more matters, to appear before the same judge. In this particular case, the Appellant appeared before 8 judges in the previous 16 months. (BCCA 119 at para. 6). Applying the legal principles described in Pereira, Voith J.A. also found the Appellant had not met the burden of establishing that a reasonably informed person would conclude there was an inability to hear and decide the appeal fairly and objectively. (BCCA 119 at para. 8).

Counsel for the Appellant: Kathleen Walker

Counsel for the Respondent: Casey Dheenshaw (Singleton Urquhart Reynolds Vogel LLP, Vancouver)

Counsel for the Respondent, Public Guardian and Trustee of British Columbia: Murray Wolf (McLarty Wolf, Vancouver)

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